Biglaw, Boutique Law Firms, Screw-Ups, Small Law Firms

Beyond Biglaw: The Dean's 4-Step Formula For Dealing With Mistakes

Every lawyer, no matter how talented, makes mistakes. Here's advice on how to deal with them, from columnist Gaston Kroub.

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Show me a lawyer who has not made a mistake in their career, and I will show you a lawyer who has never practiced a single day. Mistakes happen. Lawyers are human, and no matter how well-trained, or how high their billing rate, there will be times when someone screws up. Most of the time, those screwups turn out to be harmless. Other times, they land the unfortunate maker of the mistake in these pages, as an unwilling “news item” of interest.

As with many other things related to law practice, younger lawyers are often not taught how to deal with the inevitable mistake when one happens. As a result, easily correctable situations are often made worse, with the “cover-up worse than the crime” an often-seen consequence. In fact, other than being told not to make mistakes, younger lawyers, whether at Biglaw or smaller firms, often receive no training at all with respect to this issue. Making things worse is the tendency of firms to turn partners into demigods, who must have never made a mistake on the way to their current position. And no firm would ever admit that one of its current partners is capable of error. While definitely not true, this aspect of firm “culture” often serves to inculcate in younger lawyers an irrational fear that if they make a single mistake — disaster. Bye-bye to their jobs, at least.

This is a silly state of affairs. And when younger lawyers think that the more senior lawyers they work for are infallible, they are much less likely to come forward to ask for help correcting a mistake. No one wants to be embarrassed and admit they created a problem. But when mistakes are not addressed quickly — ideally with the input of more experienced lawyers who are better positioned to understand the ramifications of both the mistake and the corrective measures necessary — they have a way of festering, making it worse for everyone.

The solution is a simple one: educate younger lawyers, and “remind” more senior ones, about what to do when a mistake happens, as part of trying to minimize the cultural barriers found in law firms that hamper having mistakes addressed quickly and with the input of everyone on the legal team. To start, we can learn from one of the great basketball coaches of all time, the recently deceased Dean Smith — who, despite coaching some of the best players of all-time, definitely saw his share of mistakes perpetrated by his team on the court.

We can use one of the boneheaded mistakes I made as a relatively senior associate as our example. What happened? I was running a hotly contested patent litigation between two competitors. We were in discovery, and there was a “fight ‘em at every turn” playbook being followed by both sides. It was deposition “season,” a three month or so stretch where we were either taking or defending multiple depositions a week. One of the deponents was an executive at a third-party — we had subpoenaed the company, and were working with their outside counsel to get the witness lined up. We had a date for the deposition lined up, at the offices of the third party’s outside counsel. It got canceled, on short notice. So I rescheduled for a week later, directly with counsel for the witness. Confirmed with my partner who was taking the deposition that he was available. Then confirmed the day before the rescheduled deposition that it still worked for the witness, his counsel, and my partner. Thought for sure that at some point I had notified opposing counsel of the rescheduled date. But I hadn’t. The legal equivalent of an airballed foul shot.

Coach Smith’s formula for dealing with mistake is a straightforward one and forms an easily remembered acronym: RALF. Step one is to [R]ecognize your mistake. In my case, that did not happen until the morning of the deposition, when myself, my partner, the witness, and his outside counsel were ready to start. But there was no sign of opposing counsel. Originally, I thought that they had decided to cover the deposition by phone, as they were from an out-of-town firm. Then I started to realize that maybe I had never confirmed the rescheduled date with them. Mistake recognized.

Step two according to Coach Smith is to [A]dmit the mistake. Despite my self-directed anger for creating the situation, I was able to do so in that instance. First I told the other people in the room what I thought the issue was, and apologized for making the mistake. Then I called opposing counsel, confirmed with them that they had not received notice of the deposition, and apologized to them as well. While no one was happy about the wasted time, I do feel that admitting the mistake straightaway made it easier for everyone to accept my apology and move on. Everyone on all sides had been running ragged trying to keep up with the hectic deposition schedule — not an excuse, but admitting the mistake did help make people willing to move on more quickly, without lasting consequences for anyone. We had work to do, after all.

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Step three is an obvious one, to [L]earn from the mistake. Up to that point, I had flawlessly coordinated dozens of depositions, and there were dozens more still to coordinate — just in that one litigation. A mistake was made. But not repeated. And since then, I have become extra vigilant to make sure to coordinate all discovery with all sides, particularly when there is a third party involved. Even hard-charging lawyers are able to forgive honest mistakes. Once. Tolerance quickly fades, and even evaporates, when a mistake is repeated — because lawyers who don’t learn from their mistakes are either clueless, obstinate, or a unsavory mix of the two. A danger to themselves, their colleagues, and their clients.

Finally, Coach Smith advises the mistake-maker to [F]orget it. Here, I distinguish between the short-term and long-term. In my situation, it was critical for me to put the mistake behind me as soon as possible — I had a case to manage. Crippling yourself because of an error just makes things worse. So in the short term, once whatever mess you have created is cleaned up, move on. Longer term, however, it is important to remember your mistakes so that you don’t repeat them. More importantly, remember that you are capable of mistakes in the first place — even when you have been anointed a partner. Because mistakes will happen, and we are judged on how we deal with them.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Earlier: 3 Steps To Owning Your Mistakes

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

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