23 Trial Lawyer • Winter 2023 See Guilt, Grief, Grey & Gravy p 24 able harm Mabel suffered, but will shed light on the neglect so the facility, with pressure from its insurance company, will make changes and no other mother and daughter will suffer in the same way again. The grief Acknowledging that I have no social work or mental health education, I am constantly on the lookout for signs of what I have come to call non-diagnostically a “grief disorder.” (This "disorder" is only as it pertains to litigation, not the grief itself, because the grief is a feeling that very legitimately comes in all forms.) I look for this particular red flag, starting at our very first meeting. I ask myself, does the loss or injury of the loved one significantly impair the representative’s ability to see what actually happened, to grapple with arguments for and against liability or to understand the limits on damages? You’ve probably all been in some circumstance where your client has a hard time comprehending the arguments against the case, making client counseling feel arduous and case resolution impossible. Once I recognized this barrier and gave it a name, my ability to work with clients relaxed and I found inroads to move through the case, and to improve my clients’ understanding of the path toward the best resolution. With an adult daughter, Elizabeth, sobbing in my office at our third client meeting, I’m struggling to help her understand we cannot attribute her father’s death to the medication error that made her dad sick, after which he died only a few months later. The claim cannot be a wrongful death, but rather is a personal injury survival action. I need her to understand this distinction, because it affects my evaluation and my legal advice about case strategy. So rather than hit that legal issue directly with Elizabeth, telling her the opinions of medical experts and the law on the topic, I push back from the table and say, “I see your pain. Have you talked with anyone about how you feel, about how hard this is?” Remarkably, she says, “No — that’s why I’m here.” I was shocked. I take my role as a “counselor at law” seriously, and I want to talk with her about her pain, but have to be mindful of my own limitations. I’m there to prepare a presentation of liability and damages. I need to focus her attention on those issues, not counsel her pain. Here is where I always assess the option of having a professional personal representative replace the grieving daughter, but this is not always necessary. So I move on and say “I’d really like to have you talk to someone about your feelings.” And then I name it, “I think talking to someone about your GRIEF will help your case.” She doesn’t respond directly, as I expected, but at least I put it out there. At our next visit, I ask, “Have you talked with someone yet?” Oh yes, she says, with some enthusiasm, “My gynecologist!” What? Um, I think, this was not what I had in mind. But then she shares that her gynecologist was the first person, other than me, to offer simple and vital support for her grief, along these lines, “I can tell this is really hard. You’re taking on a lot being the only child. You’re doing a great job. Your dad would be proud of you. I know you miss her a lot.” I imagine the flood gates opened in that OB-GYN office, and I’m so glad they did. Because my client slowly started to break through her “grief disorder” and we were able to see the case through to the resolution that was fair, appropriate and empowering. Asking my clients to seek professional counseling and, if not that, simply to talk to others about their grief takes a huge load off me. It helps them process their life and their case, and most importantly for me, opens the doors to meaningful case resolution, one that leaves the client more whole and more healed than before there was a case.
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