THE COVER UP IS INVARIABLY WORSE THAN THE ERROR: WHAT TO DO WHEN MISTAKES ARE MADE

The post earlier this week based on the article by the Honourable Joseph Quinn led to to look in detail at one point made – that of avoiding a “cover up” and acting immediately to deal with mistakes.  This led me to re-visit earlier posts and guidance on what to do when mistakes are made.  After all mistakes in litigation make up a large part of the material in this blog.

WEBINAR: AVOIDING PROCEDURAL AND OTHER PITFALLS WHEN WORKING REMOTELY:

On the theme of mistakes there has been little discussion about the challenges that remote working pose to litigators, particularly in the area of avoiding mistakes and putting them right.

On the 16th October 2023 I am presenting a webinar on Avoiding procedural and other pitfalls when working remotely, this covers issues of putting things right when mistakes are made. Booking details are available here. 

This webinar looks at the major pitfalls that can occur in personal injury litigation with the particular aim of helping those who work remotely, or who supervise remote workers.

It takes a close look at the SRA, Law Society and other guidance on remote working and supervision and examines these in the context of personal injury litigation.

It will look at:-

• Professional obligations when working remotely and supervising remote workers
• Common pitfalls in personal injury litigation, identifying them and “heading them off”
• When things go wrong, remote working and putting them right

A LESSON FROM HISTORY – THE COVER UP IS ALWAYS PAINFUL

In the earlier post the judge was writing about the impact of social media upon litigation. Sometimes it shows parties doing something that they should not be. These errors are then often compounded by that party

[402] Does history have a lesson for lawyers and their clients working with, or ambushed by, social media evidence? Yes.
[403] For those of you on the flattering side of 60, the term “Watergate” may have a foggy meaning. Allow me to lift the fog.
[404] On Saturday, June 17, 1972 (I had been a called-to-the-bar lawyer for about three months), there was a break-in at the Democratic National Committee headquarters at the Watergate, a hotel-office complex in Washington, D.C. It was the 1972 version of an e-mail hack today.
[405] Five men were arrested for the break-in. They were found to be carrying cash which was traced to a slush fund used by the official organization behind Richard Nixon’s campaign for re-election. (Nixon was a Republican, hence the interest in the Democratic National Committee headquarters).
[406] An investigation was launched by the Senate Watergate Committee in July of 1973, during which testimony was heard from, among others, former members of President Nixon’s staff. In the course of this hearing, the Committee learned of secretive and sometimes illegal activities (labeled, at the time, “dirty tricks”) carried out by people connected to Nixon and to his administration. The “dirty tricks” included bugging the offices of political opponents.
[407] The Senate Watergate Committee hearing produced one bombshell after another, with the biggest blast coming from testimony that President Nixon had a tape-recording system in his offices. The equivalent today would be to come upon a cache of relevant social media evidence midway through a trial. The hearing was upended.
[408] After intense litigation, the United States Supreme Court held that President Nixon was required to turn over the tapes. These audio recordings showed that Nixon had tried to cover-up what occurred after the break-in and that he had attempted to obstruct justice.
[409] It was the cover-up, not the break-in, that forced Nixon to resign on August 9, 1974.
[410] Subsequently, there have been many instances (usually in the world of politics) where this history lesson was forgotten; the cover-up almost always is worse that the initial wrongdoing.
[411] Of what relevance is this to you and to your work as a trial lawyer? In a family law trial, for example, where custody is an issue and the father, again, for example, is confronted with a photograph of a drunk male, who looks like him, a lot like him, doing cartwheels in the nude down Yonge Street in Toronto at noon hour, he might consider immediately admitting the authenticity of the photograph, apologizing, explaining that this is not indicative of his character and swearing that it will never happen again. Thirty seconds of contrition will curtail what otherwise would be a lengthy and embarrassing cross-examination. Do not attempt a cover-up. Instead, confess and curtail. I have witnessed this happen in trials several times and, if genuine, it is very effective. It removes most of the fuel from the fire that otherwise might burn uncontrollably. A vigorous cross-examination of a contrite witness quickly starts to look like bullying.
[412] The alternative is to dance around the issue in the witness box and hope that your trial judge is a gullible dimwit (and, as I am now retired, your chances of being that lucky are greatly reduced).
[413] Had Nixon confessed, rather than covered-up, he would have been able to complete his second term as president and avoid the ignominy of a forced resignation. The damaging fallout would have been curtailed.
[414] Therefore, confess and curtail. Here endeth the lesson.

USEFUL GUIDANCE ONLINE: OWNING YOUR MISTAKES

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

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.

FIXING YOUR MISTAKES

Here we are re-visiting a post based on at an article by Elizabeth Collura in Lawyerist.com – Recognisizing, Owning and Fixing Your Mistakes.  This is short but to the point. Mistakes happen, they are rarely disastrous. It is a failure to address the mistake promptly that will cause real grief.

DO NOT DWELL

A common theme of the guidance we have looked at so far is that mistakes will happen. The real problems arise when there is an attempt to hide or cover them up. Elizabeth Collura’s view is if you make a mistake:

• Do not dwell or make excuses.  However an explanation is very different from an explanation.
• Do not panic
• “Focus on the task in hand and save the brooding for later”.

ARTICULATE AN ACTION PLAN

• Communicate clearly the steps you plan to take to remedy the problem.
• Give details of the expected timeline and the likelihood of success.

GET MOVING

• Put your plan into action straight away.
• Demonstrate that fixing the problem is your highest priority.

IDENTIFY MISTAKES IN ADVANCE IF YOU CAN

• There are few errors that are truly unfixable.
• Time and experience are the only real teachers.
• Try to discuss matters with a colleague.

“Look for any opportunity to talk a tricky situation through. Through this process you will hopefully be able to identify and head off future problems before they erupt, or at least contain the fallout.”

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…). As has often been said the Supreme Court is only “right” because there is no further appeal.

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.

APPLYING THIS TO CIVIL LITIGATION

The need for contingency planning

Litigators, of all people, should know that things can go wrong. If they did not then there would be no need for litigators. Planning for things to go wrong is not a sign of weakness or defeatism.  It is pure realism.  All litigation departments have systems in place to ensure that things go right, however your contingency plan provides the essential safety net. Further effective contingency planning will feed back into the department and cut down on mistakes in the first place.

Knowing when things go wrong

Any contingency planning has to have a strategy for recognising when things have gone wrong.  In many cases this is obvious. The key point is often when a limitation period is missed, proceedings not served in time or an application made to strike the action, or part of the action or Defence, out.

Who should deal with the file?

When matters go wrong on a file it, normally, becomes the bane of the lawyer’s life.  It is often passed onto someone else. Hence the courts often see witness statements that say:

“I now have conduct of this matter because I am the newest/youngest/ most gullible person in the department and everyone else realised that this file was a bag of rats.”

Of course the statement does not say that expressly. However most of our District Judges and Masters have knocked around for while and they can recognised the “hospital pass” file. It is not difficult to read the writing between the lines and Judges are, often, not impressed. Any  personal sympathy for the litigator involved is overtaken by anger (if not disgust) with the firm that put the litigator in that situation.

Further it is doubtful whether the new fee earner is comfortable with the file.   I have been involved in cases, particularly for large firms, where the assistant solicitor given charge of the matter regarding  being handed the “problem” file as somewhat of a blot on their career. They have explained to me that they felt that even being associated with the file would taint their reputation and their prospects. Further because much of the time spent on the file could not be billed they were unwilling to spend enormous amounts of time on it.

Someone sensible, and experienced needs to take this on

If a decision is made that problem files should be moved on (and my Advice is that, subject to the views of the client, they should be at least for the purpose of solving the immediately problem) they need to be moved to someone senior and with considerable, patience, wisdom and experience.  There is an abundance of talent in our litigators and, in most firms, someone will fit the bill.  Dealing with problem files should be the pinnacle of the litigator’s career. With these files it is often your firm’s money and reputation at stake it is sheer folly to hand the file to someone who is uncomfortable with them, no matter how diligent they are.

Act promptly and act decisively

Usually this involves an application to the Court, or defending an application.  This is where things can go wrong and where golden opportunities are missed for things to go right.  Any application made hereinafter, should be perfect with the forms accurately completed, witness statements clear, concise and wonderfully drafted and everything lodged and served in good time.

The important thing here is to be clear about the decisions you are making and, if relevant (which it usually is), consult with your indemnity ins

•  If the position is hopeless then it is prudent to recognised this at once and mitigate   the damage as much as you can.  Hopeless applications to the court will only increase costs.
• Even if the position is, apparently, hopeless there may be other escape routes. For instance  the law relating to service of a claim form within the four month period is extremely strict.  It will be rare for a court to grant an extension. However:-
•  If the limitation period has not expired you can issue again.  (This is not, automatically, an abuse of process).
• If the limitation period has expired, in personal injury cases,  then you can make an application under Section 33.

The case may require some lateral thinking. However if the position is hopeless then you must advise your client to go elsewhere.

If the position is salvageable then there are two rules:-

*           Don’t make the position worse.

*           Do what you can to make the position better.