12:45, Wednesday afternoon. I ate a bowl of seafood bisque for lunch. At that time, I had no clue I had any food allergies. I returned to the office, hung up my coat, and sat behind my desk. Fifteen minutes later, my eyes became itchy. My skin started to stretch. I took two Benadryl and pried my contacts out of the rapidly narrowing gap between my upper and lower lids. Soon after, realizing that the reaction was not abating, I got into a cab and headed straight to the hospital emergency room.
All I needed to do at the check in window was remove my sunglasses and show them my dramatically swollen face and the slivers of eyes through which I could barely see. Within seconds, I was seated in an adjacent room, talking to a nurse then to a doctor. An IV was inserted into my arm, and I was receiving drugs to reverse the reaction.
Because of the severity of my reaction, I had to be observed for a number of hours. They said I might need to stay overnight. Eventually, the ER rooms all filled up, and I was wheeled into the doctors’ working area to be observed. The head resident and the attending physician each introduced themselves, and while they observed me, I observed them. They were working only a few feet away at work stations at the end of a bank of computers.
Every once in a while, a junior resident would approach the head resident and say, “I have a 72 year old male…” or “There is a 25 year old female…” and they would go on to explain some points of the patients’ complaints, personal history, their physical symptoms. And the head resident would ask, “So what do you think is going on?” and the young resident would answer, quite fully, drawing on tests, observations, etc. The head resident usually followed up with a question, or several, about the significance of family history, or a specialist’s opinion, or a test result. In some cases, the attending physician, or another clinician, added to the discussion. Ultimately, the younger resident was asked to give his or her conclusions about a course of treatment and the more experienced physicians would approve or modify. He or she then went off, presumably to execute the conclusions.
As I lay there that afternoon, I realized what a necessary process this was to help physicians develop the judgment needed to make life-or-death decisions on their own. Similarly, but in a far less formal way, seasoned lawyers help more junior lawyers to develop the judgment to assess their clients’ problems and understand a repertoire of approaches to solve them. That’s how I developed as a lawyer, as I know many of us did.
We present the client’s situation and research about the applicable law to our supervising attorney. We engage in a back and forth conversation with other attorneys, allowing us to draw on the experience and wisdom of others who may have encountered such situations before. Eventually, through this process, we develop our own repertoire of experiences to draw upon. We develop judgment. Then we readily know when we see a client presenting with certain characteristics what law may be applicable and which of a number of alternative approaches to the problem may be most suitable to our client. Doctors call it residency; we call it mentoring.
This is also why scenarios are a preferred format in CLEs. They force a lawyer to consider herself as the decision-maker. In the emergency room, so to speak. What do you do in a situation where the client presents with X, Y or Z, knowing the substantive law, and the ethical Rules, and the practicalities or economic drivers impacting the situation? The next time you are asked to present a CLE, make sure to bring a hypo or two and ask the participants what they would do in the situation. And because there may be more experienced lawyers in the audience, you may learn something too.