Does low emotional intelligence (EI) put lawyers at higher risk for malpractice liability?

Lawyers test at low emotional intelligence compared to the general population and other professions. They are particularly low in a critical component of emotional intelligence: emotional perception, or awareness of their own and others’ emotions.

Being out of touch with one’s emotions has been demonstrated to increase malpractice liability among doctors. An empirical link exists between poor communication and subsequent malpractice litigation among primary care physicians, with poor communication cited in over 40% of medical malpractice suits. Low emotional intelligence often accounts for that poor communication. In a study involving medical students who described their emotional response to a traumatic medical event, those demonstrating “emotional disengagement” were later rated by patients as having poorer specific and overall communication skills.

Low emotional intelligence has also been found to impair the ability of doctors to establish strong relationships with their patients.  Strong relationships are apparently what inoculates doctors from medical malpractice claims. “If a doctor and patient have a strong relationship, even if something goes wrong, they are less likely to be sued for it,” says Robin Diamond, chief patient safety officer at Doctors Co., which provides malpractice insurance for 73,000 physicians. In order to reduce malpractice claims, WellStar Health System, with five hospitals and more than 550 doctors, is using emotional intelligence training to help doctors significantly improve their communication.

So are lawyers with relatively low emotional intelligence at higher risk for malpractice claims?

An article written in 2000 entitled “Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship” highlighted the impact of emotions on lawyer/client relationships. The author detailed a laundry list of instances of lawyerly poor judgment and misconduct resulting in disciplinary sanctions, malpractice liability, civil liability and even criminal liability. The author’s assessment was that these behaviors were the result of poor emotional intelligence, a new concept at the time.  She concluded that increasing emotional intelligence in lawyers offered a path to less exposure to those types of liability.

In reviewing the ABA’s Standing Committee on Lawyers Professional Liability from 2000-2007, the Chicago, IL American Bar Association found that:  “At the most elemental level of law practice, emotional intelligence appears to be necessary for attorneys to avoid malpractice liability… [N]early one-half of all malpractice claims allege errors relating to professional skills required in pre-trial evaluations, negotiations and settlements.  These skills necessarily entail an integration of substantive legal knowledge with a broader range of competencies embraced by emotional intelligence [emphasis added]—listening, understanding, communicating, conceptualizing, anticipating, simulating, and perspective-taking.” See Randall Kiser’s Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients.

According to the Canadian insurer The Lawyers’ Professional Indemnity Company (LAWPRO), which insures all attorneys in Ontario for malpractice, the major cause of malpractice claims there has shifted during the last thirty years from calendaring mistakes to “attorney/client communication and relationship issues,”exactly what the medical profession sees as the source of malpractice claims. The ABA says the U.S. and LAWPRO “show relatively similar claims experiences.”

One of the factors involved in attorney malpractice may be lawyers’ difficulties in assessing risk, a result attributable at least in part to their low emotional intelligence. An important study found that those with higher emotional understanding could distinguish whether specific emotions they were experiencing were relevant to the decisions they were making involving risk. Those high in EI were able to sort out whether their emotions, such as anxiety, were produced by the characteristics of the deal or by something else.  Because of that understanding, they were able to ignore incidental emotions that were not relevant to the deal and make a more balanced decision, sometimes even taking on more risk than they initially considered appropriate.

As the lead author explained: “People often make decisions that are influenced by emotions that have nothing to do with the decisions…  But our investigation reveals that if they have emotional intelligence, they are protected from these biases… People who are emotionally intelligent don’t remove all emotions from their decision-making… They remove emotions that have nothing to do with the decision.”

The implication for lawyers is that our low emotional intelligence levels makes us vulnerable to inaccurately assessing the risk associated with a situation because we are unable to accurately assess what our emotions regarding the matter are or what those emotions are caused by.  In addition, lawyers’ typically high pessimism would make it hard to expect a positive outcome to a risky situation and our typically low resilience would make it hard to commit to a path that could result in failure, from which it would be difficult to recover.

Hence, logically there would be a self-protective tendency in lawyers to avoid risk that in some cases may not even be there.  That notorious aversion to risk may be doing our clients a major disservice, a disservice that could also result in liability.

The high level of distress among lawyers is also a considerable factor–according to some researchers distress alone is sufficient to raise significantly the incidence of legal malpractice. Attributes of emotional distress that prime lawyers for malpractice include short and long-term memory loss, and the inability to solve simple math problems, process language, engage in analytical thinking and critical reasoning, and deal with negative information.  Other impairments include a narrowed focus of attention and a reduced capacity to develop creative ideas, empathize or to understand other perspectives. Emotional intelligence provides lawyers with the tools to manage stress before it becomes distress.

Not only is the distressed lawyer at greater risk for malpractice, but his/her firm risks being disciplined for failure to identify and correct an attorney essentially missing in action.

Thus, attorneys who lack emotional intelligence represent a swelling financial risk for law firms and malpractice insurers. See also Randall Kiser’s How Leading Lawyers Think.

Reducing malpractice claims and liability requires that we understand what drives them. Hiring more emotionally intelligent lawyers, making more emotionally intelligent partners, and providing professional training to raise emotional intelligence in our firms can put us on a path to lower malpractice liability and greater profit.