How Not to Get Sued

By Greg Nathan posted July 15, 2021

Several years ago I was invited by the American Bar Association to deliver some educational sessions on the psychology of the franchise relationship. I remember many of the attorneys being particularly fascinated when I recounted a study on why doctors get sued, and the lessons for them and their franchisor clients.

Research on malpractice lawsuits by Harvard psychologist, Dr Nalini Ambady, found there was not a simple statistical relationship between a doctor being sued and the medical mistakes they make. She found there were highly skilled doctors who were sued a lot and doctors who made a lot of mistakes who were never sued. In other words, patients were not filing lawsuits just because they had been harmed by shoddy medical care. There was another factor involved.

The five behaviours that made a difference

This turned out to be how patients felt their doctors had related to them at a personal level. Patients more likely to sue, felt they had been rushed, ignored or treated poorly.

Ambady’s team of psychologists were able to identify the following subtle but significant differences in the behaviors of doctors who did not get sued:

  1. They spent a little more time with each patient.
  2. They set mutual goals with patients on what should be accomplished in appointments and encouraged patients to ask questions.
  3. They demonstrated active listening skills, such as paying attention and asking clarifying questions.
  4. They built rapport with the patient and laughed during the consultation.
  5. Their tone of voice was more consultative and not dominant. 

This last point is especially significant, because independent judges in one of the studies could predict which doctors would be sued just by the tone of their voice. The sued group had a dominant tone that indicated the doctor was not listening, talking down to the patient or not treating them with respect. (You can find a summary of this research in Malcolm Gladwell’s excellent book, Blink).

One of the most important needs of every human being is to be treated with respect and taken seriously. In my work with hundreds of franchise networks, I sometimes see franchisor executives acting in a haughty or gruff manner because they believe they have the right to make unilateral decisions that impact on their franchisees. In other words, they behave like the doctors who got sued. The point is, it is not necessarily smart to take an arrogant position because you believe you are legally right, or commercially well-informed. The franchise relationship also has a personal dimension that needs to be respected.

How to improve satisfaction by 39%

In one of the many franchisee satisfaction surveys we have conducted, the morale of franchisees in a particular brand was positive across the country, except for a particular region where franchisees were feeling ambivalent. The field consultant for this region was replaced and a survey of the same franchisees twelve months later showed their overall satisfaction was above the national average. On the specific area which measures the extent to which franchisees feel their opinions are valued and listened to, satisfaction in this region increased by 39%.

We subsequently interviewed the new field consultant, asking him what he had been focusing on. He said he had made an effort to encourage franchisees to attend regional meetings and provided the opportunity for constructive, open discussion on issues of interest to them. I also spent two days with him as he interacted with franchisees, and observed the following:

  1. He showed a genuine interest in the performance of his franchisees, and asked specific questions to quickly gain relevant information. 
  2. If a franchisee complained about something, rather than becoming defensive, he would listen and draw out their thoughts on how it could be improved.
  3. If he disagreed with a point of view, he would say so, but he always explained why, giving facts or examples where possible.
  4. His body language indicated a keen interest in the person he was talking to. Every conversation was treated as though it were the most important thing happening at the time.
  5. He didn’t take himself too seriously. He was happy for others to have a joke at his expense and every meeting, no matter how serious, had a moment of levity.

While I respect the important work of my franchise attorney colleagues, and the need for people to protect their legal positions, I do dream of a day when people are less likely to sue each other for well-meaning mistakes because they have felt listened to and treated with respect. While it sounds simplistic, the research evidence on the power of respectful listening is hard to ignore.

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