DEEP SURVIVAL in LITIGATION
I am reading an excellent book, “DEEP SURVIVAL, Who Lives, Who Dies, and Why” by Laurence Gonzales. It explores why some people survive and others do not when they find themselves in stressful outdoor adventure situations. I am discovering that it also teaches valuable lessons for those who find themselves involved in litigation.
A particular section of the book concerning “getting lost” caught my eye. First, the author makes the fairly obvious point that becoming lost results from being unfamiliar with one’s surroundings. But “being unfamiliar” with your surroundings is a relative term. For example, a native New Yorker has no problem navigating the City including getting from point A to point B using the subway system below ground and then popping up above ground at a street intersection --- all the while knowing exactly which way to walk to get on the right train or arrive at a specific address on 10th Avenue. On the other hand, that same person may become hopelessly lost on a mountain hike in the White Mountains of New Hampshire. Conversely, a hiker who comes to the White Mountains every weekend will know exactly where they are and how to get where they are going on the trail system, but may become terribly disoriented as soon as they descend into the bowels of the NYC subway. My point? If you have not been through multiple litigations, without a good guide and strong litigation management skills, it is likely that you will become hopelessly lost in the unfamiliar surroundings of the rules of procedure, rules of court, jargon of litigation, confusing intersections of common, state and federal law and the roles and sometimes opaque motivations of various players in the litigation game. As a result, you are not likely to know where you are in the process or how to find your way to your business objectives.
The Five Stages of Confusion
As in the wilderness, once you become lost in litigation, you can “die” of confusion. A short excerpt from DEEP SURVIVAL describes what happens.
“EVERYONE WHO dies out there dies of confusion. . . . The research suggests five general stages in the process a person goes through when lost. In the first, you deny that you’re disoriented and press on with growing urgency, attempting to make your mental map fit what you see. In the next stage, as you realize that you’re genuinely lost, the urgency blossoms into a full-scale survival emergency. Clear thought becomes impossible and action becomes frantic, unproductive, even dangerous. In the third stage (usually following injury or exhaustion), you expend the chemicals of emotion and form a strategy for finding some place that matches the mental map. (It is a misguided strategy: for there is no such place now. You are lost.) In the fourth stage, you deteriorate both rationally and emotionally, as the strategy fails to resolve the conflict. In the final stage, as you run out of options and energy, you must become resigned to your plight. [To survive], [l]ike it or not, you must make a new mental map of where you are.”
Those of you who have lost your way in litigation may recognize the five stages. Those who have dodged that bullet likely were very familiar with their surroundings because they have been through multiple litigations and knew or learned how to properly manage their litigation team. Others may have had good guides in their outside counsel. Caution: Not all litigators are suitable pilots. While they may be skilled in the litigation process, their understanding of your objectives and how to reach them may vary widely from yours. Unless you and your outside counsel have discussed, analyzed and decided on both an overall business strategy with realistic expectations for success and the tactics and a budget to reach those objectives, it is highly unlikely that you and your counsel will be working off the same map. Many clients wrongly just assume their litigator “knows” the business objectives they want to achieve. Other clients may not have thought through clearly what they want to achieve because they do not understand the litigation process and what their options are. For example, your counsel (and you) may believe you just want to “win” --- at “any” cost. But not all cases are bet the company“ and may not warrant a full on Blitzkrieg approach. And “winning at any cost” can be interpreted in many ways. Unfortunately, it may take several months of bills – including the first one that you may not see for 30 or 60 days after the work is done, until you realize that multiple lawyers are working every angle and every issue to death – even those with little likely payback. All this in the belief that you have authorized them to do what is necessary to “win.”
Avoiding “Death” By Litigation
Just like being lost in a maze of mountain trails with dusk and temperatures falling rapidly, not understanding your litigation surroundings can quickly snow ball into the five stages of being lost and then “dying” as described in Deep Survival. You may initially deny disorientation, and press on with your counsel leading the way and attempt to match the mounting bills with the mental map in mind of what you would like to believe is happening. Then, as you realize you have little real idea of where the litigation is headed and where you are in the process, you realize you are lost and have spent too much money already, clear thought becomes difficult, frantic and unproductive. You begin to worry about what your Board or superiors will ask or say about where the litigation is headed and what it will cost. At this point, you may expend a lot of energy and effort trying to rein in your outside counsel to match your mistaken mental map of the litigation strategy you may have originally contemplated but never communicated. But, this is unlikely to succeed because options that were once available (early settlement, discovery, counterclaims) have been foreclosed by rulings from the court or positions taken, money has been spent and is unrecoverable and you find yourself resigned to your plight. As you would on the side of Mount Washington with a weather front moving in fast, to “save yourself” requires drawing a new mental map that reflects the reality of where you are and working from there. And, a new mental map often means starting from scratch with your new reality – an expensive proposition and one that may be difficult to explain to your Board.
This may sound quite overwhelming and depressing. But, the reality is that litigation is an expected part of being in business and you best be prepared. And, even if you have very little experience navigating litigation surroundings, becoming lost and all of its consequences can be avoided if you learn how to properly manage your litigator and the litigation. This does not mean becoming an expert in the law. This does mean first choosing proper counsel. Just because someone went to law school or, even has tried dozens of cases, does not necessarily qualify them to serve as a suitable skilled guide for your litigation journey. And, even after choosing a good guide, staying on the trail and not getting lost in the forest requires that you clearly establish business objectives and expectations from day one, keep an eye on your compass heading and then monitor and enforce your expectations.
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