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WHY DO SOME PEOPLE GET SUED WHILE OTHERS DON’T?
By Samuel B. Burke

Our economy has changed a great deal over the past several decades, and today most people work in a service industry. These businesses deliver services to customers or clients with whom they create and maintain relationships. In those relationships, the business usually solves some problem for the customer. When a business’s essential function is solving problems, you would expect those businesses who are the least effective problem solvers to be the ones who get sued. However, failing to solve a customer’s problem is only one of the ingredients that leads to a lawsuit. Surprisingly, error rate alone is not a very good indicator of which businesses are likely to get sued and which are not.

When people get sued they will almost always ask themselves, why did this happen to me?There are many reasons lawsuits get filed. The person who has been sued may not have been able to control the circumstances that led to the suit. However, a significant cause of litigation may be easily controllable.

In his book Blink, Malcolm Gladwell writes about the observations of Alice Burkin, a medical malpractice lawyer. Ms. Burkin is quoted as saying “In all the years I have been in business, I’ve never had a potential client walk in and say, I really like this doctor, and I feel terrible about doing it, but I want to sue them.” In fact, Ms. Burkin’s clients had flatly refused to sue doctors they liked even when confronted with evidence that their injuries where that doctor’s fault.

Most lawsuits start with a call to a lawyer’s office. What precedes most of those calls is a relationship that is no longer working. A study of medical malpractice suits showed that the difference between doctors who had never been sued and those that had been sued multiple times was roughly three and a half minutes. That’s the difference in the amount of time the doctors who had never been sued (18.3 minutes per visit on average) spent with their patients versus the amount of time the doctors who had been sued on multiple occasions had spent with their patients (15 minutes per visit on average). What was happening during that time?According to the study, not much related to health care. Instead, the physicians were using that time to set expectations and to build a personal relationship with the patient.

For example, the physicians who had not been sued used orienting comments like “First, I’ll examine you then we’ll talk about your problem” or “l’ll leave time for your questions.” Also, the physicians that had not been sued more often laughed and made small talk with their patients during the visit.

As part of your business’s risk management strategy, you should consider the following: 1) Set clear expectations with customers/clients when starting a communication, 2) Make time to ensure that you have answered all of their questions (even ones that may have occurred to them during the call or meeting), and 3) Take the time to talk to customers about how they are, and laugh and joke with them when appropriate. Show some interest in their personal lives and not only the commercial transaction in which you are involved. If you do these things, your customers will probably like you (or like you more). In general, people don’t sue people they like.

Everyone makes mistakes. Sometimes those mistakes don’t hurt anyone. But when they do, the difference between a lawsuit being filed against you or not could be as little as three and a half minutes.

Samuel B. Burke is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Sam can be reached at sburke@dentonlaw.com or www.dentonlaw.com.