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Beyond Biglaw: Mistake Tolerance

The likelihood that clients (or colleagues) will forgive a mistake depends on a few key factors, as columnist Gaston Kroub explains.

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Beyond BiglawLast week I wrote about the importance of categorizing clients, if only to make the decision on whether to hang on to difficult ones an easier one to make. My key point in that column, astutely noted by a commenter, was that a lawyer’s tolerance for a difficult client should be closely tied to the opportunity working for that client presents. This week, I want to focus on the importance of “knowing where you stand” with clients — because that information can be critical to salvaging a relationship when a mistake is made, or a misunderstanding arises.

We don’t like to think much about mistakes, even though they occur even at the best firms. In my experience, the likelihood that clients (or colleagues) will forgive a mistake depends on a few key factors. For example, mistakes are usually forgiven and forgotten more quickly when there is “some history” with the client or colleague. Whether that history is based on a long relationship, intense work on a complicated matter, or even a familial relationship does not matter. Mistake tolerance goes up when there is some length or depth to the relationship.

Generally, clients will forgive mistakes relative to the sophistication of the work being handled by the lawyer making the mistake. For example, in-house counsel will typically be much less forgiving of a missed deadline (since keeping track of deadlines is a routine task) than they would of an error in an emergency brief. Context matters — clients have a sense of what is “tolerable” human error, and what is an intolerable snafu.

As members of a detail-oriented service profession, lawyers need to understand that “routine errors” can be more damaging to a client relationship than bigger problems – such as losing a close case. Put another way, a lawyer who loses a major case, even if some strategic errors were made along the way, may be more likely to retain the client than a lawyer engaged for “volume work” who routinely demonstrates a lack of attention to detail. The more sophisticated and important the work you do for the client, the more likely it is that you will be given a chance to correct mistakes, rather than getting replaced for making one in the first place.

facepalm face palm mistake lawyer partner associateRelationships between partners and associates (or even partners and other partners) follow the same rules. It is sometimes easier to forgive a “major” mistake, such as the associate suggesting an argument based on an incorrect reading of a case, than a more “harmless” one. I’ve written in the past about making some big mistakes in my time as an associate, such as when I forgot to confirm opposing counsel’s attendance at a third-party deposition. The same partner who quickly forgave me for that oversight was actually known for being tough on other associates for much less “costly” mistakes, such as not formatting draft briefs according to the partner’s preference.

The reasons why I was forgiven so easily are illustrative. For one, both the partner and I were extremely busy at the time, juggling multiple depositions in a short time frame. A mistake while in the crucible of high-stakes and “active” litigation is more easily understood than if an error was made during a less hectic time. Another factor was my seniority and level of responsibility. It may be a curious phenomenon, but the tolerance by clients or colleagues for simple mistakes often goes up when the lawyer making the error is more senior. Likewise, the level of responsibility borne by the lawyer is also a factor in determining mistake tolerance. When lead trial counsel has a typo in an email sent directly to the client from the courtroom, it barely registers. But if a poor first-year gets the date wrong on some meaningless memo to the file, watch out.

None of this is intended to suggest that we should not as lawyers strive to be mistake-free. That is a given, and earning a reputation as a careful lawyer who demonstrates an attention to detail goes a long way towards building mistake tolerance in colleagues and clients. At the same time, every mistake — no matter how minor — chips away at the level of trust others will have in your ability. The higher the level of pre-existing trust, the more likely your mistakes will be tolerated by others — up to a limit, of course. At some point, even the most beautiful beach can erode beyond repair.

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In our firm, there is very little tolerance of mistakes of any kind, but we are often harder on ourselves for making any than we are on each other. But that is because we each feel a strong responsibility to the firm as a unit, and trust in each other. In contrast, my tolerance for the mistakes of people other than my partners is much lower — especially if the work they are doing is not “mission critical” and they are supposed to be making my life easier rather than harder (doubly so if I am paying “good money” for the subpar service).

Ultimately, mistakes will happen, and as I have said in the past, a lawyer’s ability to respond to them is often a key determinant in the success of their career. When a mistake does happen, it is important for the person who made the mistake to understand how that mistake will be “viewed” and calibrate their response accordingly. It is important to be honest about the strength of the relationship with the offended party, and realistic about the consequences of the mistake. On the flip side, the person affected by the mistake has to consider more than just whether to forgive the error. They also have to be honest with themselves regarding the impact of the error on their estimation – and willingness to continue trusting – the lawyer who screwed up. Human relationships are complicated, especially those that involve trust. When it comes to mistake tolerance for lawyers, the only guarantee is that the mistake not made is the one assured of being tolerated.

Earlier: Beyond Biglaw: Categorizing Clients
Beyond Biglaw: The Dean’s 4-Step Formula For Dealing With Mistakes

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 gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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