THE BATTLE BEFORE US

Courtrooms are battlegrounds where society’s bullies and the oppressed clash, where the victims of abusers seek recompense, and where parties cheated by scalawags seek retribution. … Justice depends upon an array of factors including the prevailing case precedent, the skills of the legal advocates, and the merits of each party’s claims and counterclaims.

― Kilroy J. Oldster, Dead Toad Scrolls

The litigation process is rife with peril. The courtroom is a crucible in which irrelevancies, innuendo, falsehoods and deflection are burned away leaving only … the truth. A skilled attorney well versed in the art of cross examination looks upon an adverse witness as a snake. Through artful questioning, the attorney wields the scalpel of his wording so adroitly, making an incision here, a shallow cut there, that the witness, like a snake, more easily sheds its skin of subterfuge so that only the truth is left.

And yet, when the stakes of litigation are so incredibly high, when the very existence of an organization is at stake, when the needs of our families suffering from mental illness are the predominate issue, we must embrace that which is in the best interest of those who are suffering … and dying. And since the stakes are so incredibly high, life and death, our soul must first look for honorable resolutions. We embrace the translated words of the Chinese general, Sun Tzu in his treatise, “The Art of War,”:

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

Sun Tzu is referring to a balance of power. He wisely suggests that, at all times, you should make the option of avoiding conflict, or surrendering during conflict, appear more appealing for your enemy.

So too, an honorable resolution was offered to the National Eating Disorder Association in the recent class action lawsuit. In fact, even before the lawsuit was filed numerous communications (at least 15 emails) with NEDA were made attempting resolution. A cordial one hour discussion occurred with NEDA’s interim CEO. Settlement offers were made. No counter resolutions were offered. And so, litigation was filed. Even still, for the sake of the community, early resolution was again attempted.

During the past few months, an honorable resolution through mediation was offered to NEDA. An olive branch. Mediation is a private opportunity in which all parties air the strengths and weaknesses of their case and a skilled mediator utilizes this information to attempt settlement of the case. The process is confidential. A settlement which would lead to hope for those families who are so suffering from this disease.

And so, mediation was scheduled for March 11. After this date had been agreed upon, an alleged “conflict” arose with NEDA’s representative and NEDA asked to reschedule. Another date was set, this time April 2. And again, because of an alleged mistake by the attorneys retained by the insurance company for NEDA, mediation will not occur. And with that, hope for an expeditious resolution faded away.

With the federal court demanding progress, with the hope of resolution through early mediation extinguished, we surely must now go to war. And to war we will go. With courage. With strength. With the facts and law on our side. With absolute resolve.

In litigation as in war, you achieve victory by engaging in a relentless, aggressive, well-orchestrated and carefully designed plan to obtain victory and deprive your opponent of the initiative. You make your opponent pay a price higher than it expected for choosing the path of war.

So, war it is. In litigation, an attorney has the power of the legal system at his/her beck and call. Issuing subpoenas for relevant documents not just from the named parties but also from third parties and witnesses. Deposing people who may have information of relevant facts. Uncovering lies. Exposing fear, arrogance, greed and collusion. Discovering facts which support long held suppositions. Where necessary, including third parties as possible liable parties. Hundreds of hours spent on the process. The uncertainty.  The unexpected. For example, did United Behavioral Healthcare dare to consider that in the Wit case, it would lose its ability to control its own claims process and possibly have to pay attorneys’ fees exceeding $3o million dollars?

The greatest truth to embrace, the truth that keeps one focused through this great process is the reality that people who suffer from eating disorders will undoubtedly benefit from this challenge. Families who suffer from this disease may find comfort and greater opportunities to heal. Fraud, and those who perpetrate it will at long last be exposed.

And yet, we must continually be looking forward, always forward. We cannot look back at those who have died from this disease. But, we can help those who still suffer. THAT is what this lawsuit is about. Saving lives. That is the absolute reality which keeps one focused, which guides one through the turbulent days, weeks, months and years which lie ahead. Saving lives.

And so, “Once more unto the breach dear friends, once more …”

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