Another column on avoiding mistakes? Sure, especially now that the hubbub around associate pay raises appears to have quieted for now. Actually, considering how well-paid certain associates are, you would imagine that firms would be more focused than ever on avoiding costly errors, especially by their junior staff. As an owner of a small firm, I can say that the collective attention level of both myself and my partners towards avoiding, or at least containing, errors has only increased over time. Which may be a natural consequence of continuing to transition from a Biglaw employee mentality (everyone in Biglaw is an employee to some extent) to an ownership mentality. Either way, it is necessary for firm leadership to see a major part of their role as educating those below them on how to identify pitfalls, and how best to react once an inevitable mistake happens.

I personally feel fortunate to have grown up at a Biglaw firm, Greenberg Traurig, which espoused this ethos. While I was an associate there, and continuing through my time as a shareholder, the firm experienced explosive growth, both in terms of number of lawyers and in terms of breadth/depth of the firm’s practice. While everyone welcomes the increased financial performance that can accompany a firm’s expansion, it is less sexy — but no less important — for that firm to increase its focus on preventing mistakes as it expands. At GT, it was clear that the firm’s leadership expected everyone in the firm to contribute towards the goal of avoiding, or at least containing, the impact of, errors. The message filtered down, in much the same way that today’s public service messages exhort the populace to “say something if they see something” with respect to a suspicious package, for example. Coming from a culture like GT’s has made it easier for me to appreciate the importance of this issue, especially since the connection between success and longevity in the legal profession and the ability to avoid or contain mistakes is so apparent.

When considering how to avoid mistakes as a service provider, it can be helpful to consider the perspectives of professionals from other high-risk industries. I am a particular fan of trying to learn from the aviation and medical communities, since I believe the consequences of mistakes in those fields have forced those industries to hone effective countermeasures. Whether it is pilots adopting pre-takeoff checklists as a way to avoid silly mistakes during the most dangerous phase of flight, or doctors writing their initials on the body parts they actually need to operate on, we see that even simple steps can lead to positive results in terms of reducing avoidable problems. So I read with interest recently an exchange in the Wall Street Journal’s letters section, where both a pilot and a doctor offered their take on what they have found effective in terms of avoiding mistakes.

We can start with the pilot. Apparently the commercial aviation industry puts a (necessary) premium on training pilots in “error trapping” techniques. While the precise definition of that term seemed a bit amorphous to me as an outsider reading the pilot’s letter, the sense that I got was that pilots are trained to avoid common errors — with an understanding that identifying which errors are common is a critical first step in the process. Once an error is established as a potential trap, specific techniques are taught and drilled so that pilots can avoid falling into that specific trap. I am sure we can collectively identify many common traps in law firms, and even come up with a practice group-level CLE that could help lawyers avoid those recurring errors. That’s a class I would sign up for, or offer to give.

Even though the aviation industry has created an “error trapping” culture, there are still risks — especially when the different people in the hierarchy fail to communicate with each other, or the ego of the leader gets in the way of listening to the warnings of teammates. One of the things that was interesting about the letter from the pilot was the recognition that as the literal “captain of the ship,” the letter writer needed to speak with authority and command the respect of the crew. At the same time, the pilot also recognized the need for everyone on his team to have a voice when it came to pointing out potential problems, and feel comfortable coming forward in the critical moments before the mistake actually happens. That balance is as essential in a law firm as it is in the cockpit.

The physician’s perspective was a bit different, but no less valuable. While the doctor recognized the importance of avoiding an overly paternalistic approach, particularly in terms of encouraging underlings to come forward with potential problems, the doctor also wanted to emphasize the important role of self-help in a time-restricted environment. In particular, the doctor urged patients not to abdicate their responsibility to show ownership over their own health issues, and recognize that their service provider (in this case the physician) was not a mind reader. Nor to forget that it was counterproductive for a patient to leave out health information, about a symptom, for example, because the patient had made the independent (and probably incorrect) determination that it was not important.

The message was clear. Does a doctor have to do their part to empower patients to speak up? Of course. But if the patient won’t take responsibility for their own health, even to the point of not informing their doctors of all their issues, how can we expect doctors to divine what the proper course of treatment is for every patient? Throw in the extreme time constraints of the medical (and every other) profession, and a lack of communication and self-help can have disastrous consequences. We all know what can happen when a client hides information from its law firm. In some respects, clients need to do their part to help their own cause, or at least recognize that withholding information from their lawyers can increase the chance of law firm errors in the representation.

Ultimately, these two perspectives demonstrate the importance of everyone in the chain accepting responsibility for helping to avoid mistakes. Whether it is the client or patient making sure that their service provider has the best and most complete information possible, or the head of the legal team making clear that pointing out potential mistakes is a necessary part of every team member’s job, successful avoidance of mistakes requires everyone’s focus. When everyone is looking to trap errors, it is less likely that any errors will escape the traps.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Earlier: Beyond Biglaw: 3 Quality Control Tips For Firms
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.