Last week, I explained that if you are under investigation, the record you are creating is a public record, and it will serve as the record should your case proceed to a contested case hearing. This is why the communications you receive from your investigator are formal, cogent, and professional. Similarly, your lawyer’s communications, sent on your behalf, should be coordinated, thoughtful, and legally strategic. In the most difficult of cases, this approach is absolutely necessary to succeed, and in the easiest cases, this approach is still necessary to prevent mistakes. Here are a few examples of real mistakes made by licensees when unrepresented by legal counsel.
Example #1 – Gloria
“Gloria,” a physician, was practicing under a restricted license, and she sought to have many of her restrictions lifted or modified. She sent frequent one or two sentence emails to her investigator, asking questions, often using her smart phone, which added the line, “sent from my smart phone.” Gloria would often send follow up emails without allowing the investigator adequate time to answer her first email. Other times, Gloria would fax material to the Board’s investigator, using only a facsimile cover page and the investigator’s name, without any explanation. All of Gloria’s communications would eventually make it into her file, but those communication were too frequent, too casual, and unprofessional. Gloria also appeared to have a “tin ear” for the investigators requests and concerns. She wanted relief from the Board, but she was not providing what the Board wanted from her. Not surprisingly, both Gloria and her investigator were frustrated, neither one able to understand the priorities of the other, bringing forward progress to a standstill.
Example #2 – Sam
“Sam,” a physician, did his own research, and would occasionally find literature helpful to his case. Sam would attach such articles to an email and send it off to the Board’s investigator, without much explanation, but intending to prove that he was meeting the applicable standard of care. In one unfortunate case, Sam found an article with a seemingly helpful introductory summary, and he sent it to the Board. A thorough reading of the article, however, suggested that Sam’s practice protocols did not meet the exacting standards required by the authors of the article, something Sam did not learn until he was harshly examined during his interview. Despite the time Sam put into his preparations, he never generated, much less provided, a single, cohesive, persuasive explanation of his standard of care.
Lessons to be learned
Perhaps half of Gloria’s communications were unnecessary, if not irritating, to the investigator, and the other half should have been consolidated into a few thoughtful, timely, and responsive communications, that would have placed Gloria in a professional light. More importantly, before Gloria could be in a good position to request relief from the Board, she needed to understand and comply with the Board’s requests. Once these mistakes were corrected, forward progress was immediate, and Gloria got the relief she sought.
Sam had the right idea, because he needed to establish that he was meeting the applicable standard of care. Sam’s approach, however, set Sam up for a big loss. Sam acted hastily. Sam’s defense was not persuasive, and, at times, harmful to him. Sam’s various communications should have been consolidated into one or two timely communications, complete with thoughtful analysis, including end notes, a bibliography, and enclosures of the most helpful articles. Inconsistent authority should have been distinguished. Using this approach, Sam’s mistakes would have been avoided, and the art of persuasion honored. Needless to say, the type of mistakes Sam made are not easy to correct.
Mistakes are often easier to prevent that to correct
Overall, Gloria and Sam both communicated too freely, too casually, and too often with their licensing Boards. Gloria and Sam’s mistakes would have been prevented by experienced legal counsel. Experienced legal counsel will communicate less often, but more thoroughly and persuasively on your behalf.