STAYING SANE AS A LITIGATOR 1: “OWN YOUR MISTAKES”

Today I am speaking at the Motor Accidents Solicitors Society annual conference on the topic of “Avoiding a Breakdown – Helping Your Clients by Helping Yourself”.  I thought this would be a good day to start a new series on dealing with the pressures of limitation.  One of the points I am making is that making mistakes is human, and will happen to all lawyers at some time or another. The key question is how you deal with those mistakes.  Most ethical problems arising from mistakes arise, not from the initial error, but attempts to cover up thereafter.

This morning I am recommending you read 3 steps to Owning Your Mistakes as an Associate by Keith Lee, on his blog Associate’s Mind.

 

OWNING YOUR MISTAKES

One day, Keith points out, you are going to make a mistake

“You’re going to miss a deadline, not file an objection, miss an important bit of case law, or not contact an attorney involved in a case about a hearing. A mistake is going to be made and it will be your fault.”

KEITH’S ADVICE

  1. Don’t panic.
  2. Make a plan.
  3. Don’t dodge.

That last point is of considerable importance.

“Time to own up to your screw up. Contact your supervising attorney and tell them that there is a mistake has been made with matter X, and you need to discuss it with them. Once you’re in their office, don’t try and shift the blame or avoid responsibility for the our failure. Completely own the problem.”

 

THIS HAS TO BE SAID TIME AND TIME AGAIN

The important thing is to seek help. We litigators make a living because people make mistakes. It cannot be a great surprise that mistakes happen in litigation. Everyone is  going to make mistakes (Even judges, otherwise there would be no need for the Court of Appeal and the Supreme Court…).

WHEN THE SKY FALLS IN

Mathew Hickey puts the point succinctly in Rocket Lawyer

“There will be moments in your legal career when things go wrong. Maybe even the devastatingly, “the sky is falling” sort of wrong.”

Legal culture, however, favours the myth of infallibility.  Lawyers do not make mistakes.  This contrasts with reality, where mistakes are made.

THE REASON THIS IS IMPORTANT

This myth (and again myth it is) of legal infallibility can have profound consequences.  The most significant of which is that it can make lawyers reluctant to  admit their mistakes at once, or, as in the case above, attempt to hide them.  The difficulty is that:

  • Many mistakes can be rectified if dealt with early.
  • The “cover up” of the mistake is almost always far more harmful than the mistake itself.
  • The costs, expense and delay to the client are made much worse.

SO TELL YOUNG LAWYERS (AND REMIND OLDER LAWYERS) THAT MISTAKES WILL BE MADE

  • Making mistakes does not make you a bad lawyer.
  • Failing to admit mistakes makes you a bad lawyer (you are never going to learn).
  • Covering up your mistakes makes you a dishonest lawyer (and probably an ex-lawyer).

Mistakes in litigation, if identified early enough and dealt with promptly enough, can often be rectified, or at very least the consequences minimised.

Far better to face up to a mistake than lose your means of earning a living.

PILOTS LEARN ABOUT CRASH LANDING: LAWYERS DON’T

As a passenger I am comforted by the fact that pilots have regular training on what to if anything goes wrong during the flight. I don’t expect things to go wrong, I  certainly don’t want anything to go wrong. However there are good reasons for pilots to be trained in this way. Not least they are learning from mistakes made in the past.

However there is very little by way of equivalent for lawyers.  It could be said that the issues are “obvious” and do not need telling.  However this does not take into account the sheer feeling of panic that can overtake a practitioner when a mistake has been made.  There, are, of course, sometimes issues of ego as well.  However the purpose of training and instruction is to ensure that people know what to do.