Why "teach" associates to make mistakes? I can hear the reaction now. "This is the last thing that we want to do. We spend all of our time training them not to make mistakes."

True enough. No law firm needs associates who repeatedly make mistakes. But every lawyer will make a serious mistake or two, or several, in the course of a career. How supervising attorneys deal with those mistakes and how supervisors teach associates to respond to mistakes will have critical importance, not only in those early years, but throughout their careers.

A young, overworked associate slaves away in an office with no windows. Every day, more work is piled on, with the explicit understanding that to turn work down, or to fail to complete it, will be a fatal career move. The pressure becomes too intense and the associate quits, walking out in hysteria, never to be heard from again. When the secretary cleans out the desk, a drawer full of unanswered pleadings is discovered.

What moral are we to draw from this story? To keep careful control of the docket calendar? No docketing system is foolproof. Success depends on the diligence of responsible attorneys.

Young attorneys, hearing this kind of story, draw a different moral: Excessive pressure leads people to bury their mistakes. (If you think things like this never happen, take a look at In the Matter of Barry, 90 N.J. 286, 447 A.2d 923 (1982), where infinitely worse horrors occurred because an associate was afraid to confess a mistake.)

A young associate, after three years in private practice with a large firm, gives this insight: "You learn early that you must not  make mistakes. This is critical. If you make a mistake in this economic climate, your career is over. You never get a second chance." In this environment, mistakes are going to be buried or blamed on others. They will rarely be openly acknowledged. And this delay inevitably turns them into bigger mistakes.

The ability to recognize a mistake and react appropriately is an essential professional skill. Like other professional development, it takes time to master. Very few people have the innate ability to cope with a crisis of their own making. Our natural reactions are quite unprofessional: We want to run and hide.

As a law professor, I have seen this reaction more than once. Students frequently find it difficult to take responsibility for their errors and oversights, even though they are the only ones affected. How much more difficult will it be for them to face the music when not only their professional reputations but their clients suffer as well?

Thoughtful associates long for assistance in dealing with mistakes, but they are loathe even to raise the subject. Such an important aspect of professional education should not be left to chance.

Associates in your firm may already be learning what to expect in the not unlikely event that they make an error. You might want to consider what they are learning, and evaluate whether it's an appropriate message.

For example: An associate serves an out-of-state defendant through registered mail. When the defendant fails to appear, the associate takes a million-dollar default judgment. The client is ecstatic and the attorney feels terrific. But a few weeks later, the default is set aside; the associate failed to file a necessary affidavit explaining why mail service was used. Revealing this oversight to the partner in charge, the associate is excoriated for the error. "I don't know how you could have been so stupid. Even a beginner like you can read the rules." Terrified and emotionally drained, the associate reveals the horror to a friend who practices at another law firm. (It's all in the public records, so there's no confidentiality problem.) The friend replies, "What's the big deal? I just set aside a default judgment by the head of litigation at your firm on the same grounds."

Another example: An associate goes to a closing with a senior partner representing a buyer. In the middle of the closing, the associate realizes there is an error in one of the documents, and reluctantly points this out to the senior partner. The partner responds to the associate, "We can take care of this problem. You should have been there at my first closing. After everyone had left, I discovered that there was a page missing from the contract! I was terrified! They all had to be signed again. Fortunately, I went right to my boss and he helped me fix things."

These two scenarios are being played out all over America. They represent two radically different approaches to mistakes, and they send two very different messages to young attorneys about the proper way to handle them.

To Err Is Human--Even for Lawyers

It's time we admitted frankly that attorneys make mistakes. No matter how hard you work, nor how carefully you prepare, you are going to fumble. Mistakes don't end with experience or partnership. Attorneys are only human, and to err is, after all, our most human characteristic.

Alex Forger, chairman of Milbank, Tweed, recognizes that the clash between unrealistic expectations and reality can lead to conflict: "Sooner or later, if we are sufficiently engaged, each of us will make a mistake. It isn't a subject to be avoided, but to be recognized, as part of the human dimension of practice. While the old-timers profess infallibility, they know it isn't so. Every attorney will eventually be involved in situations where an answer given is incomplete or incorrect, or where there is an oversight. The options range from ignoring the problem to recognizing it quickly and dealing with it forthrightly. The supervising partner or the firm should reinforce early disclosure. An atmosphere which says, 'Don't admit mistakes because you're going to get in trouble,' will ultimately cause trouble for the firm itself."

Is there any value in pretending lapses never happen? Is there any reason to believe you can lower the number of errors your associates make by deluding them into believing you expect perfect performance? Probably not. In fact, the opposite reaction is more likely.

Duke Nordlinger Stern, an expert on malpractice prevention, agrees: "I do malpractice exposure audits. Too many firms turn associates loose too soon and give them authority in excess of their experience. When associates are hired, the firms don't acknowledge that associates are a time commitment. On the one hand, you don't want to give too much authority too soon. You also don't want them so frightened that they are afraid to act."

Statistics suggest that the stress caused by private practice is already taking its toll on practicing attorneys in terms of both attitude and health. Adding unnecessarily to the stress of practice with unrealistic expectations just doesn't make sense.

Furthermore, the more you add to the inevitable stress of practice, the more likely your associates are to cave in under the pressure and make mistakes. Working under extreme conditions makes people particularly vulnerable to blunders which might have been avoided if the pressure were off.

And, of course, mistakes are like lies: The longer they last, the bigger they grow. I would not want to be the malpractice carrier for a firm that instills this kind of terror in its attorneys.

Roberta Cooper Ramo, managing partner of Poole, Kelly and Ramo in Albuquerque, New Mexico, agrees on the importance of "mistake management" as a topic for associate training. "It's very important to create an environment where people recognize the need to disclose their mistakes immediately to a supervisor, or many more mistakes are likely to occur. A more seasoned attorney may know exactly what to do to solve the problem. Often what associates see as enormous mistakes are easily resolved. What appear to be little slip-ups may cause huge problems. It takes experience to know the difference. The key point to convey in associate training is not that you won't make mistakes; it's that you don't want to make the same mistake twice."

She goes on to say sharing your mistakes is a good way to diffuse the stress of an associate who has made a mistake.

Stern suggests unrealistic expectations may lead to increased mistakes: "In this economy, people are scared to death about getting and keeping a job. This creates an artificial environment where associates don't react logically. The overriding burden of fear will lead to mistakes."

There are reasons beyond fear of malpractice not to terrify your associates about the possibility of bungling a case. An attorney whose primary motivation is the avoidance of an error is of very limited use. As Conrad Goodkind, a securities lawyer in Milwaukee, puts it, "Fear like this turns attorneys into drones, mindlessly repeating the processes which have already been proven safe. Associates who are trained only to avoid mistakes will never do anything creative. It is one thing to be careful and another to be wooden. Many aspects of the practice call for innovative solutions."

Mistake Management: A Requirement, Not an Option

Mistake management isn't just good business. It's part of the attorney's ethical obligations. Professor Barbara Glesner, an expert on professional ethics, suggests that planning and management are the keys to meeting your professional responsibilities. Both the associate and the supervising attorney have an ethical duty to anticipate the circumstances where mistakes are most likely to arise, such as time-pressured cases, so they can take actions to reduce the likelihood of mistakes and to disclose mistakes to the client when they occur. (Her article "The Ethics of Emergency Lawyering" is published in 5 Georgetown J. Leg. Ethics 317 (1991)).

Forger agrees. "Economic pressure makes people apprehensive. But the mistake is going to be discovered eventually, and when it is, you're in worse shape than before. Associates should understand that their careers won't suffer from disclosure nearly as much as from a failure to disclose. This is a far more serious breach of professional conduct than the error is likely to be."

It also makes good economic sense to train associates to face up to their mistakes. Training associates to be good lawyers is a tremendously expensive and time-consuming undertaking. The goal should be to keep as many competent and professional attorneys as possible. This means the entire firm has a stake in seeing that mistakes are addressed professionally.

Almost every firm has a notorious partner who eats associates for lunch. One mistake and they're out the door. Those missing associates who had the intelligence and talent, with proper training, to be productive lawyers are lost investments. Those who are fired or quit because of humiliation or stress never get the opportunity to pay back the cost of their training to the firm.

Ramo, a nationally known expert on law office economics, concurs. "It is incredibly important to remember that the only way you make back your investment in associate training is to keep attorneys with your firm for a long career. A supportive response in a difficult situation is not only a learning experience; it will also help to solidify relationships."

Finally, as we look at ourselves as lawyers and at our role in society, it seems clear our profession needs to humanize our reactions to mistakes. When we behave with kindness and compassion toward erring associates, we teach them in turn to react with compassion. As unwarranted tension is relieved, and as associates are prepared to succeed and not to fail, the entire profession benefits.

With that in mind, you might want to begin teaching new attorneys to deal professionally with their mistakes when they discover them. Mistake management should be a natural part of associate training. While teaching their associates, more senior attorneys will be reinforced in the value of full and early disclosure.

Like CPR training, mistake management training will teach attorneys to react in an emergency. While reinforcing the value of thorough preparation and careful action, you can ease some of the stress on attorneys at every level of practice. The time you take to teach attorneys how to deal responsibly with their errors will be more than rewarded in improved reactions when disaster strikes.

Corinne Cooper is an associate professor at the University of Missouri-- Kansas City School of Law, 5100 Rockhill Road, Kansas City, Missouri 64110- 2499. She is on the editorial board of the Business Law Section's magazine, Business Law Today.

Copyright © 1993 by Corinne Cooper

Copr. (C) West 2003 No Claim to Orig. U.S. Govt. Works 

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