The Reality Of Failure

Failure. We all shudder at the word and its meaning, its implications, and so on. We all fail in some way or ways each and every day. We fail to take the garbage cans out on pick up day, we fail to pay a bill that’s due that very day, we fail to be pleasant with colleagues, we can even fail to catch typos or something more substantive in a document or in a pleading. We fail to ask the killer question in deposition or trial; we fail to calendar an event; we fail to explain adequately to a client; we fail, we fail, and we fail again. If you’ve never failed, either in life or in work, then it’s probably a case of “alternative facts.”
What got me thinking (I know, assuming facts not in evidence) about failure was a presentation I heard at one of my lawyer networking meetings. Although the talk was about leadership, it was just as much (by implication) about the failure of leadership, and how lawyers fail oftentimes to be the leaders they need to be, want to be, and should be.

So what exactly is failure? Everyone reading this has a different definition of what failure is. I’ve told myself repeatedly, and I’m sure you have done likewise that nobody bats one thousand percent in life. Even Ted Williams didn’t do that.

Even Tom Brady (do I really need a reference for him?) doesn’t complete every pass. We’re human, we’re fallible, we’re imperfect.

One of the points the presenter made about leadership is that leading by requiring perfection is doomed to fail. Perfection is the enemy of good, and if it’s good enough, then it’s good enough. Yes, sometimes, a typo will stubbornly remain, no matter how many times your bleary eyes look at it. Yes, you could have drafted something more artfully, but does it still convey what it needs to? Yes, we understand the “fear factor,” that fear of getting something wrong that will come back to haunt us some day, but we have to get past that fear of failure to move on.

As the presenter pointed out, if you give ten attorneys the identical document to revise, it will result in ten totally different revisions. Been there? Sometimes outside counsel wrote in a way I didn’t like, but if it got the job done, so what? It was that outside counsel’s voice, not mine, and we all know that each of us has a different voice.

The point is that we have to accept the failure and move on. We can’t allow failure to paralyze forward movement. Every day, Above the Law reports stories of successes and failures. Some successes are brilliant, some failures cringe-worthy. (Full disclosure: I have a particular fondness for bench slap stories.)

As dinosaur lawyers and yes, as leaders, we seem to fail at succession planning. We seem to fail at communicating our work expectations to millennials. We often assume the ostrich position, which is, essentially, “if I don’t think about it, it will go away.” Some lawyers are still resistant to change, whether it’s upgrading technology, using social media, or that dreaded bugaboo, developing business. (I plead guilty to my reluctance to upgrade technology; my beloved Blackberry sits alone in a drawer, awaiting its resurrection…if only.)

We dinosaur lawyers have lots of excuses for the failure of succession planning: “I don’t have time; it’s faster if I do it myself; the work product is not what I wanted,” and so on. Fill in the blanks. Those are our failures of leadership.

We need to make the time, teach baby lawyers how to do it themselves (telling them that they can always ask questions), and communicate to them exactly the work product needs. We spend our lives trying to avoid failure, but it’s inevitable, it lurks in every nook and cranny of our lives, and we spend years, even decades trying to avoid its grasp. But it catches up with all of us, shakes us by the shoulders, and says, in essence, “Look at me.” And then we are forced to confront those failures, those lapses in judgment or decision-making, whatever.

I don’t think it’s a sin to say that we don’t know the answer when asked a question. Is that failure? Is it failure to not have command of every single law and every single case? I don’t think so, although OCD lawyers might disagree. That’s what research (remember law books?) is for.

Millennials need to understand that it’s not failure to say “let me check, and I’ll get back to you” within a specified time. If the client wants the answer righthisminute, the client needs to understand that the answer given righthatminute may be revised or even discarded later on.

Every lawyer knows there’s success and failure in negotiation, litigation, and trial. Millennials need to get used to it. We lawyers don’t make the facts the clients bring to us. We just try to do the best we can with what we’re given, and sometimes, that’s not much, if anything.

Dinosaur lawyers have a lot to teach millennials, not only about our successes but about our failures. How many war stories have we told where we screwed up, big-time? What lessons did we learn from those failures? Telling those stories helps millennials avoid some of the minefields that we walked into. They will walk into their own minefields, but to the extent we can direct them to less perilous places, that’s something we should do.

We fail as leaders if we don’t transfer our knowledge and whatever accumulated wisdom we have to the next generation of lawyers. Yes, it may take time away from the almighty billable hour, but if they fail, then who is responsible?

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Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].