Most nurses and physicians have no love for lawyers, believing that the plaintiffs' bar has done little more than persecute clinicians who have been involved in tragic, yet unpreventable, poor outcomes.* Jokes about lawyers abound, many equating lawyers with bloodthirsty sharks or casting them as unscrupulous ambulance chasers. But, as a lawyer myself, I can tell you that law school made me a better clinician and that thinking like a lawyer actually made me both a better midwife and a better educator. So let's talk a bit about how thinking like a lawyer can help you in your practice.

Law school was the first place I was specifically taught critical thinking. In the legal arena, critical thinking is the ability to assess and evaluate facts (evidence) and apply the rule of law to a problem or a situation. Lawyers have to be not only ready to present their case but also able to argue their case against an opponent and convince a judge (and perhaps a jury) that their position is the correct one. To do this effectively, the lawyer must understand the opponent lawyer's argument. Lawyers must also be able to anticipate challenges to their own case and be ready to present evidence that supports their case. This means that the good lawyer will know both sides of a case equally well and could argue either side regardless of personal opinions or beliefs. In other words, the good lawyer can remain objective when viewing the evidence. The judge and jury are charged with critical thinking as well and must be able to listen to both sides objectively, weigh the evidence presented, and determine the outcome of the case on the basis of the facts and the law. So how did my legal education help me in the clinical setting? And how can thinking like a lawyer help you?

I have been teaching courses in fetal monitoring since 1979, initially as part of an outreach education program, later regionally, and now nationally. But before going to law school, the majority of what I taught others was information I had simply acquired passively, taught to me by colleagues who had more experience, and rarely, if ever, questioned or confirmed by my own independent research or critical thinking. In law school, I learned the importance of evidence and the value of fact checking. I began to question much of the dogma I had been taught (and was teaching myself), and I began to question my own thinking and belief system related to childbirth and obstetrics. For instance, when I went to midwifery school, I believed that all women needed an intravenous catheter for labor and birth and that all women would need to hold their breath and perform long Valsalva pushing (3 pushes of 10-second duration for each contraction) if they had any hope of a vaginal delivery. Not only had this been what I had been taught as a labor and delivery nurse but also it was all I had seen, so it was deeply entrenched in my mind as being correct. I was unable to conceive of a safe alternative. I am sorry to say that midwifery school did little to disabuse me of these beliefs and that I entered practice as a certified nurse-midwife with the intravenous catheter for everyone and "push till you're purple" approach to birth.

My practice really did not significantly change until I went to law school and learned to be more open to evaluating the evidence and questioning long-held assumptions. I started to read about second-stage pushing. I started to actually listen to other views on birth, and I began to realize that many of the things I had believed to be irrefutable truths simply did not have a sound basis in fact. Today, I encourage participants in my classes to doubt me, to question materials I present, and to evaluate the evidence thoroughly themselves. I provide references for principles and conclusions; I strive to make it clear when something I teach is expert opinion, anecdote, or personal opinion; and I encourage questions and thoughts on bias and cognitive dissonance. I even apologize for past teaching of erroneous information. For example, I used to teach that late decelerations were ominous, which is false, so now I not only teach participants the actual mechanism of a late deceleration but also apologize for my earlier mistake. Because of my legal training, I now question myself frequently and read constantly to ensure that information I present is not only current but also supported by the evidence. And if the evidence is insufficient to draw a conclusion on a subject, I do not hesitate to share this with colleagues. Our knowledge in many areas remains limited. Why pretend otherwise?

Clinicians at all levels of experience would do well to think more like lawyers, not only when evaluating care but also when drafting protocols. Lawyers are obsessed with language and will argue over the use of "may" versus "will" when drafting statutes, because the first implies an option whereas the second is a mandate. Like statutes, protocols have to cover a variety of situations, yet many are inadequately considered before being put in place. One example that has recently been the subject of my attention is the sad but common proliferation of protocols specific to tachysystole. This occurred in response to the 2008 National Institute of Child Health and Human Development Workshop Report on Electronic Fetal Monitoring (2008 NICHD), which, in addition to confirming definitions for electronic fetal monitoring, also provided new consensus information on the evaluation of uterine activity.2 Tachysystole is a summary term that applies solely to the frequency of uterine contractions and, by definition, requires evaluation of 30 minutes of uterine activity. There are other problems with uterine activity that can affect the fetus besides frequency, and interventions and assessment may be indicated well before a full 30 minutes of excessive uterine activity.

In fact, reading the 2008 NICHD as a critical thinker (or as a lawyer), one would find a very important point for inclusion in any discussion of protocols or algorithms for management of excessive uterine activity. The report specifically stated: "Contraction frequency alone is a partial assessment of uterine activity. Other factors such as duration, intensity, and relaxation time between contractions are equally important in clinical practice."2^(p662) Yet, many well-intentioned nurses and physicians have drafted policies that address only the treatment of tachysystole and do not address other types of excessive uterine activity.* Policies and protocols should address all aspects of excessive uterine activity and not tachysystole alone, and if clinicians were applying the principles of critical thinking that every lawyer learns in the first year of law school, policies and protocols would not only provide sound clinical guidance but also be helpful in defending reasonable care. When policies and protocols are not well-reasoned and thoughtfully drafted, everyone suffers.

In closing, I would like to offer a critical thinking approach that can be used by clinicians to evaluate clinical practice and help with discussion and drafting of policies and protocols, and it may even prove helpful when making decisions outside the clinical arena. First, begin with a clear statement of the issue, question, or problem, keeping it as objective as possible and always exploring your own (or the group's) potential areas of bias and preconceived ideas. Next, gather all the available evidence from a variety of sources and try to evaluate the evidence as an impartial reviewer. Critically analyze and assess the evidence, seeking and encouraging the input and opinions of others, especially those with varying backgrounds and different viewpoints. Draw conclusions on the basis of the evidence and seek consensus for approaches where evidence is lacking or contradictory. Finally, be open to continually reevaluating the conclusion or approach, recognizing that new evidence or information may warrant a change in practice or render a prior conclusion invalid.

Ongoing evaluation and questioning are crucial to critical thinking, and when applied to policies and procedures, they can prevent these policies and procedures from becoming stale or even inapplicable to current practice. Bertrand Russell said, "The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt." Let's all learn to slow down, think carefully, question our assumptions, and view the evidence as impartially as humanly possible. In short, instead of blaming the lawyers, let's try thinking like them.

-Lisa A. Miller, CNM, JD

Founder

Perinatal Risk Management and Education Services

Portland, Oregon

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