Most lawyers have an intimate acquaintance with a doctor, whether as a spouse, sibling, roommate or otherwise.
And so we know that while society may traditionally think of lawyers and doctors as similar doctors definitely don’t and are usually quick to point it out. If you’ve lived through the education of a physician, there are two areas in particular where our professional paths diverge:
• The way doctors get advanced professional training.
• The way doctors think of standards of proof.
Doctors are trained in residency, where they spend long hours in the hospital seeing patients and delivering care. New medical treatments are generally (although not always) subject to a clinical trial level of evaluation, where some patients receive the new treatment and others receive a placebo, and their relative performances are evaluated. Medicine tries to subject most propositions to a scientific standard of proof: How do we know that if we do X, then Y will happen? “Do some X, and see if we get Y.” This is generally referred to as “evidence-based medicine,” i.e., if more physicians wash their hands, will we have fewer infections?
These divergences were brought home by a story in Friday’s New York Times about new rules limiting the number of hours that residents can treat patients. Most of us can recall the bone-crushing hours on call by our medical resident friends, and perhaps questioned whether that was an effective way to train and a safe way to deliver patient care.
It turns out we weren’t the only ones wondering. After 18-year old Libby Zion was killed by an improper drug dosing supervised by an exhausted resident in 1984, her father, journalist Sidney Zion, pushed for new rules limiting the number of hours residents could see patients. Zion’s intuition and experience—that exhausted residents would make more mistakes—was validated by a 2004 study published in the New England Journal of Medicine. So the movement to limit resident hours has gained momentum, with new rules coming into place.
Just one problem—there doesn’t appear to be any reduction in mistakes with the new rules. “The fact that the policy appeared to have no impact on safety is disappointing,’” David Bates, a professor at the Harvard School of Public Health and a national authority on medical errors, told the New York Times. As we learn more about cognitive psychology and decision-making, this becomes a familiar tale—we focus on the problem that we’ve experienced, that has emotional resonance for us, that we can intuit a solution for—but we may be focusing on the wrong problem.
Again, according to The Times: “About 98,000 people die every year from medical errors. Some of those mistakes are made by doctors whose judgment has been scrambled by lack of sleep. But fixating on work hours has meant overlooking other issues, like lack of supervision or the failure to use more reliable computerized records.”
I certainly don’t criticize the medical world for imperfect analysis—I applaud their efforts to get it right. In law, we have nothing remotely like clinical trial standards of proof, and no effort to get there. In those few areas that have been extensively studied, like death penalty cases reviewed with new DNA evidence, it appears that the system has a very high incidence of error. There’s no evidence whatsoever that the huge push for more formalized models of corporate governance create shareholder value, and the clearest examples—Apple and Google—suggest just the opposite.
Despite the basic “quality” proposition of elite law firms—that using a sophisticated firm reduces risk—actual evidence seems to overwhelmingly run in the opposite direction—all of the huge losses in mortgage-backed securities or in M&A, for example, were in deals led by elite law firms. We add clauses, we suggest tactics, we assert positions—but almost nothing we do as lawyers has any real ‘evidence’ behind it. More often than not, we default to the three Cs”—greater complexity, greater caution or greater control for our side must be a good thing. And when it comes to evaluating new ways of delivering legal services, the analogue to evidence-based medicine (Do legal process outsourcers hurt or improve quality of service? Does knowledge management reduce costs?) we operate with little or no evidence.
The Zion family’s experience is typical of our human way of decision-making. Something bad happens to us. We look for a culprit. We find an explanation and initially validate that explanation with further data. And we want that explanation reflected in the rules or norms of society. But it often (usually?) turns out the world is more complicated than we imagined, that actions have unintended consequences, that focusing on the emotionally resonant problem may distract us from the real issue. In the case of residents, it now appears that the handoff problem—how well does one resident explain to the next what care is needed—creates more errors than the fatigue problem. Shorter shifts may mean less fatigue, but also more handoffs.
Understanding how complex systems operate is thirsty work, but probably a prerequisite for truly effective lawyering, and so lawyers will have to become more adept at evidence-based law as we move into the New Normal. We’re never going to get this perfect, but as lawyers we should be humble and curious enough to always be trying to raise our game.
Paul Lippe is the founder and CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering. Lippe formerly was an executive at the electronic design automation company Synopsys and later was CEO of Stanford SKOLAR, a medical digital library and e-learning company sponsored by Stanford Medical School.
Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, and Patrick Lamb, founding member of Valorem Law Group. Paul and Pat spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. We hope you will join their discussions.