Trail Tips

“You don’t climb mountains without a team, you don’t climb mountains without being fit, you don’t climb mountains without being prepared and you don’t climb mountains without balancing the risks and rewards. And you never climb a mountain on accident—it has to be intentional.” – Mark Udall

Some mountains are small and easy to hike.  Others are big, with precarious footholds and punishing weather.  The more dangerous the climb is, the more time you need to spend doing your “groundwork” beforehand.  For example, Mt. McKinley is the highest peak in North America, at more than 23,300 feet.  But you can’t even begin the ascent without flying in on one side or hiking in 19 miles from the other.  It takes a lot of preparation just to get to the foot of the mountain.

Similarly, some claims involving alleged malpractice or misconduct involve such serious injuries or damages that early groundwork becomes invaluable.  Jumping in and doing a prompt, thorough investigation—sometimes even with early outside expert reviews—can make all the difference when litigation ultimately comes.  If your risk manager or counsel asks you to participate in this type of early investigation, be receptive and forthcoming.  Think of it as an opportunity to lighten the load for someone—perhaps even yourself—if you ultimately end up at the foot of a great mountain and have to start climbing … or decide that you should avoid the climb after all.

“When preparing to climb a mountain – pack a light heart.” – Dan May

Litigation and investigations are serious matters.  We know you don’t take them lightly.  But traveling this trail with a heavy heart isn’t helpful either. As you begin this journey, try to pack light, but smart.  There are some essential things you should bring to the table at the outset—like your ideas, your expertise, your memories, your questions, your concerns, and your candor.  Sharing these with your counsel from the beginning will save everyone, including you, a great deal of time and effort as you get further up the trail.  

After you have contributed to the initial investigation of your matter, however, try not to worry about it. Let us be your “Sherpa,” carrying the bulk of the weight for a while.  We have traveled this path many times.  We know when we need you to step up—by helping us answer discovery or preparing thoroughly to testify—and when you have already done your part and are free to take a rest. 

As Muhammed Ali said, “It isn’t the mountains ahead to climb that wear you out; it’s the pebble in your shoe.”  Your litigation climb will be far less taxing if you pack light, trust your guides, and remove the “pebbles” of worry and stress as much as possible.   

“It is not the mountain we conquer, but ourselves.” – Edmund Hillary

One of the most frustrating things about defending lawsuits and investigations is the feeling that you have no control over the outcome.  Plaintiffs have a choice whether or not to sue.  Defendants have no such choice.  Ultimately, the defendants’ only choices seem to be the two binary extremes:  settle the case or go to court.

Most of us can recite the most famous lines from theologian Reinhold Niebuhr’s “Serenity Prayer”:  “God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference.”  There are some realities of litigation that defendants cannot change.  But there are also many things you can control.  You can control how responsive you are, when your hospital’s risk managers and attorneys ask you tough questions.  You can readily agree to a risk manager’s recommendation to write off the patient’s bill, if a mistake has been made.  You can control the pace of your deposition, by answering questions calmly and deliberately, instead of allowing yourself to feel rushed. 

Even if you never conquer the mountain, you can (as Edmund Hillary says above) conquer yourself.  Clients who make the most of the litigation experience accept that they cannot control the outcome, only their contributions to it.  You may find serenity by taking the same approach.

“Each fresh peak ascended teaches something.” – Sir Martin Conway

When you reach a real mountain summit, it’s natural to take time to enjoy the view.  But in the case of litigation or governmental investigations, you might be tempted to simply breathe a sigh of relief and not process or digest what you have learned from the climb.  We recommend resisting that urge.  It’s important to take in the view from the summit … to evaluate what you and your hospital/company have learned from the litigation or investigative process.

Your trusted trail guides should be part of this debriefing.  Indeed, at the end of each engagement, we will offer to do a free debrief with you.  We will think deeply about what changes to policies or procedures might be helpful in light of what we have learned through the litigation/investigation, make specific recommendations for you to consider, and talk with you about what other learning is worth passing on.  That way, as painful as the ascent might have been for you, someone—perhaps even you—might benefit from your experience.