All lawyers make mistakes, but it is how we deal with them that forms our character and builds our reputation. I was trained in a mistake-denial culture. In my first law firm, the operative rule was that mistakes could only be attributed to associates. Partners were exempt from mistakes. Even errors in strategic decisions, decisions seldom made by any associate, were often attributed to defective associate work. Obviously, this approach generates negative consequences. It creates a climate of distrust and defensiveness. It violates the principle that lawyers should be candid. It squelches creativity by valuing mistake avoidance over problem-solving. It sows suspicion and resentment among team members. A healthier approach accepts that mistakes are normal. Although we work to avoid them, creatively fixing mistakes is far more productive than blaming them on others.

We overlook critical evidence, misstate facts, misunderstand a client’s desires, neglect our supervisor’s directions, or even miss deadlines. We fail to trace subsequent case history only to have an adversary point out that our leading case has been seriously questioned, if not overruled. We inadvertently “reply all” and send sensitive information to the wrong people. We say the wrong thing to the wrong judge. We stubbornly adhere to failing strategies. In short, lawyers engage in ordinary human behavior.

Most mistakes fall into three categories: those we know we make; those others identify; and those no one thought were mistakes until they turned out to be. There is a fourth type of mistake, one based more on defective habits than simple errors. Sloppy proofreading and inattention to detail accumulate until they become significant mistakes. Indeed, they can become the most dangerous ones, because their repetition affects the lawyer’s reputation far more than even one isolated error of consequence. Ultimately, they are failures of discipline, and the new lawyer must rectify that lack by patient determination and applying new habits. While all lawyers may not be naturally fastidious, every lawyer can learn to be.

Acknowledge Errors

The mistakes we identify ourselves are the easiest to fix. When we miss a deadline or forget an appointment, the best response is to deal with it immediately, without deflection or excuse. Some lawyers hesitate to admit mistakes. They imagine the error will be ignored or will pass without notice. But in an adversary system, mistakes tend to be discovered. A mistake admitted is already on its way to being remedied. Say, “I made a mistake and here’s my plan to fix it.” It’s that simple. Just admitting you made the mistake and are already taking steps to fix it reduces collateral damage. Missing a deadline is not easily remedied, but the sooner it is addressed, the sooner it can be resolved. Admitting the mistake also allows others to suggest their own solutions, making a successful way out even more likely.

When someone else discovers the mistake before we do, the lawyer should adopt the same process: admit, take responsibility, find the best solution, apologize, and move on. Admitting mistakes seems disfavored in the current culture, but a lawyer’s reputation depends on work that is consistently current and accurate. Mistakes not only detract from performance, but they also weaken the lawyer’s brand. Admitting the mistake and taking steps to make it right goes a long way to restoring lost confidence. If the person uncovering the mistake suggests a fix, thank them, but make the correction that best solves the problem rather than necessarily adopting the one suggested. If the person identifying the mistake is a supervising lawyer, fix it the suggested way unless you can convince that lawyer of a better approach. We may be embarrassed by the error, but how we set it right will be remembered more clearly than what went wrong. In this sense, a mistake can be another opportunity to showcase good performance.

Two mistakes stand out in my Personal Hall of Infamy. The first, which still gives me chills years later, was more logistical than legal. I was negotiating a labor contract on behalf of a hospital several hours away from the office. After a long day of bargaining with the union and making little progress, I packed up my trial bag with notes, negotiation papers, and hospital pay information and headed for the hospital’s large parking lot. It was dark and raining as I left. Finally arriving home, I got out of the car and flipped the seat to grab the trial bag – but there was no trial bag. I searched the car, the trunk, everywhere. Still no trial bag. I was close to panic. It then dawned on me that I must have put the bag on the ground to open the car door and just left it there when I headed down the road. All my client’s secrets, to the extent they were in writing, were in that bag. If it fell into the wrong hands, I was cooked.

I phoned the hospital’s security office. To my relief, a security guard had found the bag and brought it in. He assured me he would put it on a bus the next day and that it would be in town by noon. The next morning, after retrieving the bag from the bus station, I put a large greenback in an envelope and mailed it to the security guard who had saved my career. In the end, nothing was harmed except my ego.

My second worst mistake was EEOC v. South Carolina National Bank, 562 F.2d 329 (4th Cir. 1977). I had nothing to do with that case. I was not involved in any way, except that I should have paid more attention to it when I read it. My boss and I were handling a case in the Fourth Circuit involving the US Equal Employment Opportunity Commission and the doctrine of laches (unreasonable delay resulting in prejudice). In preparing our brief, I had read every laches case I could find. I found EEOC v. South Carolina National Bank, but I concluded it was completely off-point for our issues. So, I neither cited the case in our brief nor brought it to my boss’ attention. That was the mistake.

During the oral argument before the Fourth Circuit, my boss was asked about that case and had to admit he was not familiar with it. The questioning judge, who had authored the South Carolina opinion, seemed rather put out: “That was our most recent laches case, and you don’t know it?” I got an earful after the hearing. How could I have missed that case? The judge asked about it! Well, I didn’t miss the case; it just had nothing to do with ours. But the circuit judge, who had written the South Carolina decision, obviously disagreed. I was embarrassed by failing to cite the Fourth Circuit’s most recent laches decision. I should have cited it and said why it did not apply. While technically this may not have been a mistake of law, it certainly was negligent of me to neither cite it nor bring it to my supervisor’s attention. Courts pay attention to their own cases, regardless of relevance. I should have known the court would be primed to ask about its most recent contribution to this rarely litigated doctrine.

To minimize the mistake’s consequences, acknowledge what happened. There is no point in denying what will become obvious. A mistake denied has far more severe consequences than a mistake admitted. The Watergate affair taught that the cover-up can be far worse than the crime.

Admit Facts, Not Fault

There is an important distinction between admitting the facts of a mistake and confessing to fault. If the mistake creates serious consequences for a client, prematurely accepting fault may tie your malpractice insurer’s hands. Admit the facts of what happened, accept responsibility where appropriate, but do not confess to fault. Leave room for the legal consequences to be sorted out by others. If the conclusion is that you were at fault, accept it and learn from it.

Put Client Interests First

The client will ask what you intend to do about the mistake. Your response requires your having thought this through completely. You may have formulated a plan to rectify the error. But was this plan developed to protect your client’s interests or your reputation? Just asking the question discloses the possibility there may now be a conflict of interest with the client. If the client approves the plan to fix the problem and does not object to your continuing as counsel, you can go forward with the plan. But if the situation poses any tension between your interests and your duty to represent the clients’ interests, you may have to withdraw and advise the client to seek new counsel. This is a tough position for any lawyer, especially a new one. Lawyers looking out for themselves first when fixing mistakes inevitably put the client in second place. If this happens, there may be no getting around the conflict of interest.

Notify the Insurer

Although it will add to your embarrassment, it may be necessary to inform your malpractice insurer. Today most malpractice policies are written on a “claims made” basis, meaning that the policy covers claims made or discovered during the policy period. Failing to inform the insurer gives the insurance company grounds to later deny the claim based on inadequate notice. The cost of embarrassment is far less than the cost of coverage denied.

Accept Responsibility for Everyone

The blame game is never worth it. If another lawyer is also at fault, that lawyer should also take responsibility. Their declining responsibility does not lessen your duty to accept your own. Not shifting blame is especially important when working with subordinates. At the end of the day, the lawyer is the one responsible for the work that goes out of the office. When an assistant makes an error, the lawyer takes responsibility for it. The lawyer’s duty is to supervise assistants and oversee their work. So, any mistake an assistant makes must be treated as the lawyer’s mistake. This does have one major collateral benefit. When the lawyer protects the assistant from blame, the lawyer gains personal loyalty from the whole administrative staff, not just the assistant. This offers huge rewards in the long run. The reverse is also true. When a lawyer blames an assistant, the staff loses trust in the lawyer. Shifting blame deepens the pool of resentment, guaranteeing later negative consequences. Even if it feels unfair to accept full accountability, softening the blow for teammates pays future dividends.

Find a Solution

Figure out how to solve the problem. You may be surprised by how often opposing counsel will accommodate non-fatal mistakes. Other lawyers know they may need similar accommodation in the future. Ask your team or other lawyers for their ideas. Sometimes just considering the problem from a different perspective opens the door to a more creative solution.

Learn From Mistakes

After discovering a significant mistake, it may be time to revisit your decision process. What did you overlook that allowed the mistake to occur? If it was a time deadline, how is your calendar integrated into your task list? If it was deficient research, retrace your steps and find the turn you missed. If it was a rule of court or part of a pre-trial order, were the requirements integrated into your calendar process? Find the weak spot. If following your normal process would have avoided the mistake, continue the process. If not, improve the process.

There is a boundary between analyzing a process and over-analyzing it. Sometimes a supervisor will ask, “What have you done to assure it won’t happen again?” This may be just a passive-aggressive way of saying, “I don’t trust your judgment,” or it could be an encouragement to think the process through again. The tendency of the over-careful lawyer is to create so many protective rules that mistake avoidance becomes a form of paralysis that makes any project take longer and cost more. This habit saps energy. Mistakes are expensive, but creating a maze of processes to avoid a slip can be even more costly.

Once I represented nine individual defendants in an employment non-competition case. Each one was sued and served separately. I thought I had filed nine answers, one for each defendant. As it turned out, I had only filed eight. The judge held a hearing in chambers on the plaintiff’s motion for default judgment on the one case for which I had failed to file an answer. After plain-tiff’s counsel had explained why his client was entitled to judgment by default, the judge turned to me and said he didn’t want to hear an argument, he only wanted the answer to one question. “Mr. Burtch, he said, did your client fail to give you the complaint he was served, or did you fail to file an answer? Was it his mistake or yours?” I replied, “It was my mistake, your Honor. I left one out when I filed the other answers.” “Well,” the judge said, “if it was the client’s mistake, I’d find him in default, but since it’s yours, we’ll just forget about it. All lawyers make mistakes.”

There is no benefit to carrying around a career’s worth of mistakes in your brain. They will be there as reminders when you need them, but otherwise, let them go.

Takeaway Tips

• Acknowledge errors

• Admit facts, not fault

• Put client interests first

• Notify the insurer

• Accept responsibility for everyone

• Find a solution

• Learn from mistakes