Whether you are planning to climb Mt. McKinley or to provide well-managed legal services to a key client, assaying the possible and probable changes to your plan is key to success.

Recent headlines in Alaska told a tragic story about four climbers on Mt. McKinley, the highest peak in North America.  Because the weather had been predicted to be quite good, the climbers chose to leave a lot of heavy equipment behind, e.g., snow shovels, ice saws and the like, so that they could summit and descend more rapidly.  During the climb, the weather abruptly changed for the worse, and those discarded items made the difference between life and death.  Without tools for managing ice and snow, the climbers’ choices about how to survive were reduced to a pitiful few. The controlled climb became an exercise in emergency survival.   One person died, and only heroic rescue attempts managed to save the lives of the other three terribly frostbitten climbers.

Ignoring the Foreseeable

In hindsight, it is so easy to criticize the faulty judgment of the climbers. Over the years, scores of climbers have been struck by sudden weather changes on McKinley; many have died. There are books on contingency mountaineering planning. Yet this group’s failure to plan for absolutely predictable events left the climbers with diminished choices about how to protect themselves.

What does this have to do with practicing law?  Well, in Legal Project Management debriefing sessions with lawyers, we deconstruct matters that fell short of client expectations.  In post project review, three simple questions prove remarkably useful:

1) “Were the events you experienced in this matter predictable from the outset?”

2)  “Under what circumstances have they ever happened before?” and

3) “Can you predict the impact of a particular unexpected event?”

In almost every case, the lawyers readily admit that untoward events were neither utterly novel nor completely unforeseen.  In fact, the lawyers readily provide robust lists of “unforeseen” events that have occurred in similar matters.  So, if the variations weren’t unique, why not plan for them?  Why do lawyers repeatedly fail to plan for “changes in the weather,” so to speak?

Oh, That Will Never Happen

Quite simply, they confuse possibility with probability.  Although lawyers are not naturally optimistic folks (after all, they’re paid to be risk-reducers), when it comes to predicting the course of a particular matter to a client, they routinely frame their planning around the best case scenario. They don their cheery, it-will-go-great cloak and assume that things will go swimmingly (i.e., low probability of variations occurring), even though any observation of past matters tells them that best cases are rare (i.e., there is a high probability of variation occurring).  We don’t know  the source of this optimism. Perhaps it’s the drive to impress the client with images of their competence, or simple expediency and the rush to get immediate results.  Or maybe it’s human nature: the fond hope that things will go off without a hitch.

All too often, the client is never brought into the contingency planning loop and allowed to frame the probability-versus-impact equation in terms comfortable to their own risk tolerance.  When the blizzard hits, it therefore often is a complete surprise to the client, even as the firm is saying, “Oh well, we knew it was conceivable that might happen.”

All Stakeholders in the Loop All of the Time

No matter what the cause of the firm’s excess optimism, the fact remains that clients need to know both the possibilities that might impact the course of a matter and the probabilities that those variations might occur.  And, of course, they also need to understand the likely  impact of an event — no matter how improbable — when it does occur, in terms of costs, risks, delays or outcomes.

The best attorneys win client trust because they routinely provide possibility-probability-impact information, and, as a result, their clients are better able to plan, budget, reserve, and inform management of the likelihood of changes and their impacts on the matters, budgets and outcomes.


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