Monday, September 21, 2015
What can a surgeon teach attorneys about how to lawyer? In his recent best seller Being Mortal: Medicine and What Matters in the End, Dr. Atul Gawande reflected on different models of physician-patient relationships as he struggled to counsel his own father. In anticipation of Gawande’s appearance in the Twin Cities last week, I had listened to the audiobook version on my daily bike commute.
[The sold-out event focused on living as well as we can until the end. More than a book reading, the event was a party of sorts, replete with buffet options as well as the Larry McDonough Jazz Band. In my last blog, I featured a legal advocate/jazz musician and Larry’s appearance allows another jazz law digression. Larry, beyond his Dave Brubeck-esque talent at the keyboard, has been a legal aid attorney and an adjunct professor teaching poverty law at University of St. Thomas and the University of Minnesota. His current day gig is as pro bono coordinator at Dorsey and Whitney. ]
Gawande’s story telling style intersperses research and observations with patient and family stories, including the hard conversation he had with his physician doctor who faced progressive paralysis from a rare spinal cord tumor. Gawande’s dad had two surgeons from which to choose. His dad rejected the first: “[The surgeon] had the air of the renowned professor he was – authoritative, self-certain, and busy with things to do.” [p. 197]. On the other hand,
The Cleveland Clinic neurosurgeon, Edward Benzel, exuded no less confidence. But he recognized that my father’s questions came from fear. So he took time to answer them, even the annoying ones. Along the way, he probed my father, too. He said that it sounded like he was more worried about what the operation might do to him than what the tumor would. . . . Benzel had a way of looking at people that let them know he was really looking at them. He turned his seat away from the computer and planted himself directly in front of them. . . . Eventually he steered the conversation back to the central issue. The tumor was worrisome. But now he understood something about my father’s concerns. He believed my father had time to wait and see how quickly his symptoms changed. He could hold off on surgery until he felt he needed it. [p. 198].
Benzel’s bedside manner brought to Gawande’s mind an article he’d read in medical school in the 1990s by Ezekiel and Linda Emanuel, the Four Models of the Physician-Patient Relationship. The four types are nicely abridged in a Cliff Notes chart fashion here. Gawande summarizes them as follows:
- Paternalistic (“Guardian”): “[W]e are medical authorities aiming to ensure that patients receive what we believe best for them.” [p. 200]
- Informative (“Technical Expert”): “It’s the opposite of the paternalistic relationship. We tell you the facts and figures. The rest is up to you.” [p. 200]
- Interpretive (“Counselor”): “Here the doctor’s role is to help patients determine what they want.” [p. 201].
- Deliberative (“Friend or teacher”): “Doctors sometimes have to go farther than just interpreting people’s wishes in order to serve their needs adequately. Wants are fickle. And everyone has what philosophers call ‘second order desires’ – desires about our desires. We may wish, for instance, to be less impulsive, more healthy, less controlled by primitive desires like fear or hunger, more faithful to larger goals. . . . We often appreciate clinicians who push us when we make short sighted choices. . . . At some point, therefore, it become not only right but also necessary for a doctor to deliberate with people on their larger goals, to even challenge them to re-think ill-considered priorities and beliefs.” [p. 202]
These models of course bring to mind similar constructs in the legal world: Lawyer-centered (i.e. paternalistic), Client-centered (i.e. informative/interpretive), and Collaborative (broadly speaking, deliberative). G. Nicholas Herman and Jean Carey provide succinct summaries of the lawyering models in A Practical Approach to Client Interviewing, Counseling, and Decision-Making (2009) [pp. 5-11].
Gawande clearly sees the deliberative approach is the gold standard for practice. But I can think of client situations in the past year in which all four of the models were utilized defensibly. For instance, in a situation in which a young client in the midst of family conflict expressed a desire to be deported into near certain death rather than to continue with an asylum claim, we employed an old fashioned paternalistic model until the crisis passed, going so far as to have a child advocate (in essence, a guardian ad litem) appointed. In a very different situation, we use the deliberative friend model with a client we’ve served for years (and whose story I’ve blogged about here). She’s even been the teacher by coming to my class.
Are these models more like outfits or different kinds of surgical garb – each perhaps to be “worn” depending on the situation? Which style/model fits you most comfortably?
Friday, June 13, 2014
I just received a copy of Changing Lives: Lawyers Fighting for Children, which was edited by Lourdes Rosado, Associate Director of the Juvenile Law Center, and published by the ABA Section of Litigation Children’s Rights Litigation Committee. The book highlights the key role that children's attorneys can play at defining moments in their lives, including in juvenile dependency and delinquency courts, immigration proceedings, school proceedings, and impact litigation, for example. There is a teaching guide available for the book. The ABA is offering a 20% off discount through June 23 with the discount code LIVES20. The ABA may also be able to offer your students a discount code if you want to use this book in your clinic or another course. It is also expected to be published as an e-book, at a discounted rate. Contact Cathy Krebs at Cathy.firstname.lastname@example.org for more information. Here is a description:
"The book Changing Lives: Lawyers Fighting for Children demonstrates the critical role that lawyers play in changing the life courses of our most at-risk children. Without legal representation, the children profiled in this book likely would have gone down a path that was detrimental to their safety, their well-being, and ultimately their ability to grow into happy and successful adults. Changing Lives: Lawyers Fighting for Children well illustrates the difference that a highly trained and skilled attorney can make in the life of a child in need. Each chapter of the book profiles a real child in a variety of substantive areas that include:
• Child welfare (abuse and neglect)
• Juvenile delinquency
• Special Education
• Runaway and homeless youth
The chapters also include practice tips and checklists, as well as resources for developing the expertise needed to zealously represent children in crisis to achieve the best outcome and ultimately help them grow into happy and successful adults.
The authors of Changing Lives: Lawyers Fighting for Children hope to raise awareness about the need for legal representation for children and to encourage and support attorneys who advocate for children."
Tuesday, June 10, 2014
Our nation is currently witnessing headlines about the busing of hundreds of unaccompanied children across the Southwest from Texas to Arizona, where they are being warehoused, but there are tens of thousands more unaccompanied children in our nation who are not making headlines. All need our help. Tomorrow Gannett is publishing an op-ed I wrote about the need to provide legal representation for these children. It can be found here.
Law school clinics interested in this issue should consider applying for the AmeriCorps grants that the Obama administration announced on Friday to provide legal representation for these and other migrant children who are in similar circumstances (see NYT article). Information about the grants can be found at this site. The targeted jurisdictions for the grants are: Arlington, VA; Atlanta, GA; Baltimore, MD; Bloomington, MN; Boston, MA; Charlotte, NC; Chicago, IL; Cleveland, OH; Dallas, TX; Denver, CO; Detroit, MI; El Paso, TX; Hartford, CT; Kansas City, MO; Las Vegas, NV; Memphis, TN; Miami, FL; New Orleans, LA; New York, NY; Newark, NJ; Omaha, NE; Orlando, FL; Philadelphia, PA; Phoenix, AZ; Portland, OR; San Antonio, TX; San Diego, CA; San Francisco, CA; and Seattle, WA.
If you need background in preparing your application, an excellent study about these children was just published by UC Hastings with the support of the MacArthur Foundation. I recently wrote a brief law review article arguing for the appointment of government-funded attorneys and personal representatives to help unaccompanied children navigate the legal labyrinth they face. If you would like to talk or need help with your application, please don’t hesitate to contact me. You will also find tremendous resources among our our colleagues who are immigration law faculty. They are a font of knowledge, passion, and commitment. Good luck!
Thursday, May 8, 2014
In my first post about service-learning, I asked the question: who is serving whom? In this post, I want to reflect on why I think service-learning is important in the law school curriculum, and how it is different from and expands upon the skills and values we teach in law school clinics.
My first experience with service learning was almost twenty years ago, when I was an undergraduate student at Saint Mary's College. As part of our exchange with our neighbor, the University of Notre Dame, I participated in several alternative spring break experiences through Notre Dame's Center for Social Concerns. In fact, it was my participation in the Migrant Experiences Seminar as both an undergraduate and as a law student that set me on the path toward immigrant advocacy in my legal career.
Experiential learning generally - and service-learning in particular - has recently gained more traction in the law school curriculum. But what is the specific value of integrating service-learning more fully into the law school experience, and how is it different from other experiential learning opportunities? My UDC-DCSL colleague, Professor Susan Waysdorf - who has written extensively about service-learning in the law school curriculum - describes service-learning as programs that "place primary value on the service contribution and on the humanitarian participation of the students and teachers."
Professor Waysdorf's definition of service-learning resonates with me because it emphasizes the value of service-learning in the law school curriculum not just to our students, but to us as educators, as well. What do we, as teachers, gain by "giving up" our spring break to spend time with our students on these trips? What are we ourselves learning and teaching our students about the skills and values of the legal profession, and how do we distinguish it from what we teach in clinic?
I often describe clinic as a lab - in clinic, our students are able to work on a small number of cases chosen specifically for their pedagogical value, in a controlled environment and under close supervision. In service-learning, the set-up is dramatically different - both students and teachers are taken out of the safety of the clinic environment, and put in a situation where they are required to be vulnerable. Service-learning allows us to learn from those whom we are "serving" in a way that makes the experience powerful and disarming, precisely because of its lack of structure (in comparison to both clinics specifically and the law school curriculum as a whole).
In my final post in this series, I will share some stories of our service-learning experiences on the Arizona/Mexico border, and reflect further on how the addition of such opportunities to the law school curriculum can be profoundly life-changing for both students and teachers.
Teaching the Reflective Approach Within the Service-Learning Model, Laurie Morin and Susan L. Waysdorf, 62 Journal of Legal Education 4 (2013).
Returning to New Orleans: Reflections on the Post-Katrina Recovery, Disaster Relief, and the Struggle for Social Justice, Susan L. Waysdorf, 12 Univ. of the District of Columbia Law Review 3 (2009).
Katrina Disaster Family Law: The Impact of Hurricane Katrina on Families and Family Law, Mc-Carthy-Brown and Waysdorf, 42 Indiana Law Review 721 (2009).