Tom Wallerstein

A friend of mine — now a successful partner — told me a story about when he was a junior associate at a well-known Biglaw firm. Phil used to work for a superstar partner who was incredibly well respected by his colleagues and clients, but somewhat feared by junior associates. Phil told me about the time when he had to confess to the partner that he had inadvertently produced to their adversary a small number of documents that had been tagged as “non-responsive”; i.e., documents that did not need to be produced because the adversary had not requested them.

Phil expected yelling and screaming, profanity, maybe a fist pounding on the table. But instead, the partner was silent. His face showed disappointment, not anger. He slowly shook his head side to side several times, muttering to himself, seemingly unable to comprehend why fate should be so cruel as to condemn him to work with such incompetents. He rubbed at his face and eyes, first with one hand, and then the other, as if he hoped to awaken himself from a stubborn bad dream.

After several moments, he sighed loudly, and looked at Phil with seeming pity. He sighed again, to make sure my friend fully comprehended the weight of despair that he was bearing, and then once more, for good measure. Finally, the partner said simply, “We’ll have to call the carrier.”

What the partner meant was that the error was so serious that he was obligated to alert the firm’s malpractice carrier. Phil laughs about it now, but I’m sure the look on his face at the time was priceless.

What Phil didn’t know then, but knows now, is that the savvy partner’s reaction was an intentional exaggeration. The documents that had been inadvertently produced were not privileged, nor were they harmful to his client’s position. The error was easily corrected. And no, the malpractice carrier was never informed.

So why, you might ask, all the drama? Like Phil, I have come to understand the importance of stressing the standard of perfection that our clients demand and that we strive for. If new lawyers come to believe that minor mistakes don’t matter, then we worry that they may become careless enough that they make a bigger mistake.

Due to Phil’s story, I have come to refer to any mistake as a “call the carrier” moment. That phrase has become an inside joke at my firm. Whenever someone makes a mistake, no matter how inconsequential, my partner or I will shake our heads and proclaim that we better “call the carrier.”

It’s all in jest, but that’s really our way of reminding ourselves how important it is to maintain our own standard of perfection, however unattainable, and to remind ourselves that we always demand of ourselves that our work be at least as good, if not better, than the work we did in Biglaw.

Then and now, I have always tried to follow some simple rules for addressing mistakes:

Admit it: A mistake can’t be fixed if no one knows about it. By admitting mistakes you also might learn of other potential solutions you had not considered. Ignoring problems and hoping they go away is a recipe for disaster.

Propose solutions: You should have in mind several potential responses. If you admit a mistake, but don’t have solutions in mind, you will undo whatever goodwill you gained by admitting the mistake in the first place. Ideally, you will have several options to present, along with pros and cons of each.

Think proactively: Be prepared to explain how you will ensure the problem does not recur. If a detailed discussion along these lines has to wait until the immediate issue is resolved, at least point out that you are ready to discuss that at the appropriate time.

These suggestions are practical. But there are two more abstract ideas that are critical.

First, you have to not only admit mistakes, you also have to own them. Beyond just the passive-evasive approach of admitting that “mistakes were made,” you have to take personal responsibility for your role. Blaming a secretary or paralegal is especially inappropriate. When you cast blame downward on the chain of command, you are perceived as unreliable and unaccountable, both to the underling you blame as well as the person whose ire you hope to avoid. If you are leading a team which makes a mistake, it’s your mistake.

Second, acknowledge the seriousness of the mistake, as well as the potential seriousness had the situation developed differently. For example, when addressing the production of non-responsive but inconsequential documents, acknowledge that the error could have led to the production of a document that is detrimental to your client’s interest.

The inclination to protest that “It’s Not My Fault,” or to downplay the seriousness of an error, is precisely what leads partners to enact the exaggerated “call the carrier” drama. If an associate declines to accept personal responsibility or acknowledge the potential seriousness of the issue, the partner has to worry about future mistakes.

Associates sometimes complain that partners blow minor mistakes out of proportion. But there is a reason for this. “Nice” partners who don’t scream or shout or castigate have to worry that their associates will take that attitude for granted and not be sufficiently motivated to avoid future mistakes. “Mean” partners who throw fits can rest assured that they have clearly communicated their expectations. In essence, by declining to accept personal responsibility, or by downplaying the potential seriousness of errors, associates incentivize partners to act in the very way that associates don’t want.

* * *

Here’s a secret that Biglaw partners don’t want their associates to know: Most mistakes are easily corrected. Of course, there are some mistakes in the law that are, truly, “call the carrier” moments. For example, blowing the deadline to appeal can be fatal. But most mistakes can be fixed if they are addressed promptly and honestly. Very rarely will an inadvertent production cause a broad subject matter waiver of privilege. Filing an answer to a complaint a day beyond the deadline is unlikely to lead to a default judgment.

One of the biggest differences between working for others in a Biglaw environment and running your own shop is the freedom to address mistakes honestly and without feigned theatrics. Nothing’s for certain; it could always go wrong. But I don’t need to wring my hands and hang my head in shame just to make sure everyone knows that I understand the potential seriousness of a mistake.

This doesn’t mean mistakes don’t matter. They do. In our practice, clients pay hundreds of dollars an hour, and often tens or hundreds of thousands of dollars per matter. They have a choice of attorneys to hire.

I have expressed before my opinion that charging fees of that nature warrants close to 24/7 accessibility. I also think it demands striving to eliminate all mistakes. Perfection may not be obtainable, but it remains a worthwhile goal. I won’t apologize that we set that goal, however elusive, or that I will find a fatal error in what’s otherwise all right. We might chuckle about it, but it makes perfect sense to treat every oversight as a potential “call the carrier” moment.


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at tomwallerstein@coltwallerstein.com.


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