Journal Detail back to listing
Facing Disciplinary Action – 3 – Empathy and Courtesy
- Sep 13, 2022
- Latest Journal
(Note – “he” represents all sexes here, for the purposes of conciseness only)
In part 2, we have examined the “Trials and Tribulations of Trials” – ie, giving evidence – this final part is about helping you to avoid that trial in the first place (but the principles also apply also to appearing in court in person).
Empathy is defined as – “the ability to understand and share the feelings of another” (Oxford English dictionary). This aspect is of particular importance when the relationship is between an expert and a lay client. The lay client is at a disadvantage because:
• His or her knowledge of the subject involved is significantly less than that of the expert – due to training and professional (or similar) qualification
• He is (almost inevitably) more practically experienced in the subject under consideration
• His expertise is a priori endorsed by the court, which gives him standing in regard to the matter in hand – although counsel may submit questions to him – requiring a defence of his views
Many clients who believe they have received a less than satisfactory verdict from the court may then turn on the expert. The judge is generally too awesome to argue with – if a party has been represented by competent counsel, he should realise that this is not within a layman’s gift – if representing himself, he may learn this the hard way. When a client of some years ago attempted to examine me, one of his two questions was immediately shot down by both the judge and the opposition. He just about managed his second. This followed a thirty-minute close examination of me by his opposition. He did not do well. If a client resents his treatment an obvious target is the expert.
A good approach is to envisage a future review of communications by an external body and consider how that would look. First, it is always better to have all correspondence in writing – in that way, the question of who said what is unambiguous. The exception might be if a client requests a telephone discussion. In that case, it may be courteous to accede to this – however, it is important to follow the following suggestion for written exchanges. In addition, it is vital to take a contemporaneous telephone note – take notes as you go, if you can, and write up the content of the conversation (does not need to be word perfect) immediately. If you have been a Single Joint Expert, you may be required to disclose the content to the other party – the relevant guidance is not totally clear on this, post judgment.
I would recommend a letter format, whether correspondence is carried out by post or email. Observe the formalities – open Dear Sir or Dear Madam (or preferred style of address), followed by “Thank you for your letter of x date.“ Finish with “Kind regards” (or your preferred closing salutation), full signature, and title.
You may find that your client enumerates his points, which makes a response easier – just follow his numbering in responses – and then respond. As mentioned in our first article in this series, a double columned table (or “Scott Table”) is useful here. It there is no enumeration, you can add some. In particular, you can group issues according to subject, which makes your response easier to read than his submission.
Points should be fully addressed. You are at liberty to provide links to other documentation you have used to support your points. Do not hesitate to break down points, and you are fully entitled to dispute any point.
For example:
Mr X’s Point
Y ‘s Response (we are Y)
Company Y showed their incompetence by not responding immediately to a query in an important manner …
This is disputed – it is not always possible to respond immediately to a substantial list of questions which require considered checked input to satisfy them….
and then not addressing all our questions….
Regrettable, we failed to address point 9c in your queries. However, when this was pointed out, it was rectified immediately…
Note, it is important to be assertive, and you should defend yourself against inappropriate challenges – this is part of being professional. However, by doing this courteously, you keep the mood to one which will engender acceptance of your point of view.
It should not need to be said, but never respond to abusive or otherwise inappropriate comments in kind. It will always count against you. Remember, you are the professional – the client is not, and believes he has suffered some real (or imagined) wrong. Your job is now to address those feelings – and encourage acceptance of your point of view. Our speciality is providing pension reports on divorce – many of our clients have had the emotional trauma of losing a spouse (perhaps replaced), perhaps daily access to any children, and a more comfortable lifestyle. Pension loss may be, as they see it, the last straw.
This syndrome is not restricted to personal business. Corporate clients may lose substantial amounts in litigation, and this will certainly disadvantage a business, possibly to the point of bankruptcy. In all cases, judges are aware of the pain these events cause, and judgments are often worded to sympathise with the plight of the “loser”. However, for Court judgments, there is usually the possibility of appeal for a client – against an expert, a professional complaint or civil action are always possible.
As both of these actions are likely to be to your disadvantage, it is always worth continuing to respond civilly to a disgruntled client. It is possible that their real motive is to retain some hope of reversing part of their loss (whether just or not) by continuing correspondence. As time passes, and the acuteness of the loss is mollified by new interests, hopefully the client will discontinue engagement. The cost and effort of providing a small number of letters – some of which may need simply to be a repetition of past points – should pay dividends.
One other point needs to be covered – the question of fees. For a disgruntled client, an invoice may be seen as a “final insult” - especially if they have lost financially in an event such as divorce. Our firm now insist that our (fixed) fee is paid in advance of work, so this potential catalytical point of hostility is removed. If your fees are on an hourly basis, ensure that interim billing and payments are agreed in advance, so the final blow is not too great.
Finally, I touch on the moral and emotional aspects of such issues. It is always better to finalise a case with a client who, if not exactly happy, is. amenable to your point of view, and can move on with their life. In the words of Sherlock Holmes,
“Ah, Watson,” said Holmes, smiling, “perhaps you would not be very gracious either, if, after all the trouble of wooing and wedding, you found yourself deprived in an instant of wife and of fortune. I think that we may judge Lord St. Simon very mercifully and thank our stars that we are never likely to find ourselves in the same position. Draw your chair up and hand me my violin, for the only problem we have still to solve is how to while away these bleak autumnal evenings.”
