PI Brief Update

Why is it so difficult for lawyers to admit they do not know everything? - Dr Mark Burgin

12/07/24. Dr Mark Burgin discusses the phenomenon of arrogance in the legal profession and how experience from working with arrogant doctors can help the law.

A common joke amongst lawyers about doctors is that ‘GPs think they are God, but surgeons know they are’. To have the courage to open a human body with a knife knowing what may go wrong needs arrogance. Simply knowing more than others (self assurance) is not enough, a doctor must believe that they are better than other people. It has been said that 80% of drivers believe that they are above average so would it be surprising if professionals such as lawyers were occasionally overconfident?

I have read hundreds of instructions in complex cases and considered approaches, background, summaries. The quality of these glimpses into the understanding of the case are variable. In some cases the lawyer clearly indicates the evidence, the issues and questions I must answer. In many cases it is difficult to work out what the case is about which makes me doubt that the lawyer knows either.

in conversations with lawyers I have noted a typical pattern, the more confused a lawyer is about the case the more they protest that they understand it. When asked to provide a summary these confused lawyers either say ‘it is in the papers’ or ‘you do not need to know what the case is about’. This lack of insight and resistance to change is one that I recognise from working with failing doctors.

Incapacity

My personal experience of incapacity was when I was the defendant in a case. My solicitors had been advising me that I would lose the case and should accept liability. I read the defendant’s expert (i.e. my side’s) report and it fully absolved me of any wrongdoing. I asked for the junior solicitor who had been advising me to escalate to a senior solicitor of 30 years experience in this area.

At first she agreed with the junior until I took her through the evidence and the contents of ‘our’ side’s report. She had read this report carefully but despite 30 years of experience she simply had not understood its contents. At the end of the case she said ‘I did not know these cases were so complex’. Lawyers can be professionally isolated from the support they need to perform at the highest levels.

This highlights that a lawyer who is open to their own lack of understanding and willing to listen to a different opinion can overcome their incapacity. There are always complex issues that the lawyer will not understand but may feel that ‘getting an expert’ is sufficient. In my case the lawyer had failed to test the expert’s report properly but did respond appropriately when challenged. I have recommended her to several colleagues since.

Identity

Barristers are particularly vulnerable to believing that they know everything about anything. In the court room they cannot show doubt so can believe that they are right even where they are wrong. Like a surgeon who cannot show fear they must act confidently even when they are in a mess. They must act as if they are the person that they wish to be and it may surprise you that I would support them in doing so.

Surgeons often take this persona of having ‘god like’ abilities out of the operating theatre into other forums. They will argue with colleagues who are trying to point out that they have made an error, even causing that colleague to shake with emotion. This persona can follow them outside of the operating theatre as MPTS tribunal reports confirm.

It is important to have a sense of who you are and confidence in one’s abilities even if you are wrong. It is central to any professional role to give the impression that you know what you are doing. The alternative imposter syndrome has been publicly discussed by senior politicians and risks restricted performance. The real problem is when the professional cannot take off their mask and become open to the unknowns.

Emotional instability

Outward confidence can mask underlying insecurities such as low self-confidence. Cognitive dissonance can cause an intolerable feeling and they cannot keep listening. When a person explains something that upsets them they will interrupt with emotional comment. With support some professionals can listen for long enough to recognise that there may be a different opinion.

In doctors who are burning out this becomes more difficult as their ideas become more entrenched. They may admit that they are working seven days a week, that they ‘have tried life but did not like it’ but will shout at colleagues and patients who disagree. They lose the ability to control their emotions and can become hostile and paranoid. Most are relying on using medication or drugs and alcohol making them more difficult to reach.

They use defence responses such as blaming ‘why did you not stop me?’ or all-or-nothing ‘you are the worst doctor I have ever met’ or projection ‘you are inflexible and emotional’. This can make them challenging to work with as they pose a danger. It is not uncommon for a colleague of this person to find themselves in court because of the person’s actions.

Solutions

At the heart of arrogance is the assumption that the professional does understand the issue. In medicine it is well recognised that doctors often do not understand their patient’s problems. They will fob the patient off with vague advice rather than ask for help. Lawyers are likely to have cases that they are struggling with where arrogance may not be the best approach.

It is difficult to write a summary of what the case is about in medical problems or in legal cases. The shorter and simpler the summary the longer it takes and the better the understanding that is required. Few people in the criminal justice system can give a concise summary of their own case. Many can quote what their lawyers have said but do not have an understanding.

This is also commonplace in medicine, people often struggle to understand a disease such as diabetes. Few patients are aware that there are several glucose control mechanisms in the body apart from insulin. The chance of a patient being able to control their diabetes is strongly correlated with their understanding. The doctor needs to properly explain the condition if the patient is to get well.

I have met many people in prison whose lack of understanding in their own case appears to have contributed to their time in prison. Intermediaries have an important role in legal systems to ensure that communication between lawyers and people is effective. Intermediaries cannot solve all the issues that have been noted above but are an important advance in disability management.

Conclusions

All professionals make mistakes but the challenge is to identify that mistake and put it right before it causes harm. Simple steps such as being nice to people, listening to others with respect and reflecting when they learn something new can reduce the risk of missed errors. A professional who believes that they have never made a mistake is a liability.

Judges and other people who have authority should recognise that they may be facilitating people who are struggling. It is important to listen to criticism whether about your own or other professionals’ performance and be open address it if it were valid. If you feel overwhelmed by the task of sorting out the issue, then there is a high risk that your decision will be based on the difficulty of finding a solution rather than the veracity of the issue.

Arrogance in medicine and law has its place but where it becomes the only response, a way of avoiding listening to others or a coping mechanism for mental health problems it should be challenged. This may be by ensuring that most people who are going to be cross examined by a problematic barrister has access to an intermediary. In medicine the nurses will often take this role to protect patients from burned out doctors.

I have a dream that every judge asks all the lawyers in the court room to write a short summary of the case. This would identity those lawyers who themselves do not understand the case as well as providing feedback. The best version of the summary could be provided so that people like jurors or defendants are given something that they have chance of understanding. Mandatory case summaries for clients might become the norm.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

Image ©iStockphoto.com/Chaz Bharj