Guest post by Elizabeth Collura.
A partner asks you to step into his office, shut the door and take a seat. The brief glimmer of hope you had that he would break good news quickly evaporates. You are there because you screwed up. You botched it. Every lawyer, young and old, new and experienced, has sat in that chair. It is not fun, but it is an inescapable part of practicing law.
Now is not the time to panic. Now is time to figure out what to do next. A “never admit you are wrong” approach may play well for c-suite executives or senior partners, but it does not play well for someone lower in the hierarchy. Your response must be a fine balance. You should not grovel, and you should not shift the blame. By acknowledging your mistakes and taking swift action, you can preserve your superior’s confidence in your abilities.
Do not dwell or make excuses
You can save face with a brief “I am sorry, I will fix it, and it will not happen again.” Dragging it out further will make you look foolish. You can explain the error if it was the result of a deliberative process where you considered multiple options (including the one that ended up being the “right” approach). If you had justification for the course of action you ultimately chose, it may help to explain your thinking behind your actions. Be humble and acknowledge that you picked the wrong approach, but that you did consider the right one, and you had reasons for the approach you took.
Now is not the time to panic. Now is time to figure out what to do next.
Do not provide excuses. An excuse is very different from an explanation. With an explanation, you share your thinking and keep the responsibility for the error squarely on yourself. An excuse, however, displaces the blame on to anyone other than you. Responding to this confrontation with excuses makes you look immature and untrustworthy. The mistake is yours so own it. Even if it happened because of the involvement of others, you are a professional and it is your name on the signature line. The mistakes of your subordinates are your mistakes, and you must treat them as your mistakes.
Do not panic. The facts of the situation are the same, regardless of how you feel about them. Panicking is obvious to others and will erode their confidence in you. By expending energy on worry, you will be distracted and less effective, risking further mistakes. Feelings do not fix problems, actions fix problems. Feeling sorry for yourself does nothing to advance the situation and may actually make it worse. Focus on the task at hand and save the brooding for later.
Articulate an action plan
Action steps are the key to an effective recovery. The partner or the client, or both, already know that the problem exists and that it is your fault. Their trust in you has been shaken. Assuring them you will handle it without offering an action plan will not repair their confidence. Correctly or not, they perceive your decision making to be the root of the problem. Excluding their input will exacerbate their anxiety. Communicate clearly the steps you intend to take to fix the problem, the expected timeline, the expected result, and the likelihood of that success. Be open to their suggestions on how to fix the problem. Do not leave the room without at least a preliminary action plan.
Depending on the nature of the problem, it may be appropriate to not charge the client for your time spent on the corrective steps. If the problem is a strategic approach that eventually backfired, it is appropriate to charge for your time spent on remediation. Strategy decisions are part of every representation, and there are no guarantees. If the problem is more clear-cut, and the blame falls squarely on you (a missed deadline, for example), it is more appropriate for you not to charge the client for the time you spend cleaning up the mess. Think the billing decision through thoroughly. It may not be realistic to avoid billing the client if problem is dire, such as a lawsuit being dismissed. It may also not be realistic if the fix is extremely time-consuming, such as having to pursue an appeal.
Perhaps too obvious, but put your action plan into motion right away. Be upfront with the partner or client so they know your progress, and also so that, if you run into additional complications, they are not caught unaware. Keep them apprised, but do not pull them into every minute task. Inviting micromanagement will send the message that you cannot fix the issue yourself. However, keeping them in the dark when you have already put them in a position to doubt you is also counterproductive. Provide updates with each step of the plan and deliberate with them on key decisions. Demonstrate that fixing the problem is your highest priority, that you are giving it your full attention, and that you value their input. This attitude fosters trust generally, but it will also foster trust in your ability to resolve the issue.
Be grateful to your supervisor for the chance to fix your mistake
If it is a partner who called you out on your blunder, it is critical to acknowledge that they at least trust you to address the problem. A partner who has lost faith in you will not give you that opportunity. Instead they will pull someone else into the mess to clean up after you. Acknowledge this decision. A simple “thank you for giving me the opportunity to fix this myself” is appropriate. This communicates that you understand the gravity of the situation, that they have put their trust in you to fix the problem, and that you will not let them down.
Such gratitude is not best option if you are dealing directly with the client. Thanking a client for allowing you to fix a problem you caused sends mixed messages. The client’s first inclination was probably that you would fix the problem anyway, not that they would have to haul in someone else to fix it. Expressing gratitude that they trust you to fix the problem will only undermine their trust even further and make them wonder whether you really are the right person for the job. Focus your energies instead on the action items before you and keep the client updated on your progress.
It is easy to know you have screwed up if someone pulls you aside and tells you so. But when you have full responsibility for the client, problems may be less obvious. An abrasive court order will tell you in no uncertain terms when you have messed up, but otherwise it is up to you to figure out whether a problem exists and what must be done about it.
Particularly in the early years of practice, it can be hard to tell whether an issue is truly a problem or if it is just a minor inconvenience.
There are few errors that are truly unfixable. Some unfixable litigation errors in my jurisdiction include: (1) missing the statute of limitations, (2) failing to make reasonable efforts to effect service of process, (3) failing to file a timely notice of appeal, and (4) failing to timely respond to requests for admission. For one of those four, you should make the dreaded call to your malpractice carrier. These are the cardinal sins of litigation practice, and such considerations should always be in the front of your mind from the first day of practice. For almost anything else, the problem may be ugly, but it is probably fixable.
Errors in pleadings — subject to statute of limitations issues — and other filings are oft-encountered frustrating but fixable problems. For example, a colleague recently forgot to answer one paragraph of a complaint. That could be deemed a factual admission that triggers a whole avalanche of crisis and worry. However, through practice he had learned that the court would be unlikely to hold you over a barrel for accidentally skipping a paragraph. He immediately drafted an amended answer, brought the client up to speed on the situation, obtained the client’s verification and filed the amended answer. He focused on the action items and kept the client informed. The problem, start to finish, ran its course in about a day with no material consequence in the litigation or to his client’s confidence.
Particularly in the early years of practice, it can be hard to tell whether an issue is truly a problem or if it is just a minor inconvenience. Rules of procedure do little to differentiate between mistakes that are a true catastrophe when violated, and those that can be ignored with impunity. Going to a client, hat-in-hand, every time you identify a little hiccup will cause them to doubt your abilities. You can resolve inconveniences yourself without putting the client on full alert. Only when an issue presents a full-on problem to the merits or likelihood of success of your client’s case do you need to put the client on high alert.
Often a problem that calls for client involvement comes in the form of a strategic decision that has gone south. Particularly in litigation, a decision that at one point seemed like the best option may later show itself to be a disaster, because the facts and circumstances have changed. That is not a “mistake” in the traditional sense, because you made the best decision you could on the information you had. However, in hindsight, another option was better, and the decision must be treated as any other mistake. Such a problem involves the holistic case strategy and changes to that strategy.
There is no particular guideline for sorting out the genuine mistakes from the minor inconveniences. Time and experience are the only real teachers on this subject. Decisions sometimes cannot wait, and the time and demands of your position will probably throw you into judgment calls you are not prepared for. But when you do have a few moments that you can spare before making a final call, try to bounce the issue off a colleague.
Do not ignore the annoying feeling that something just is not right.
There is often a hint that an issue will be problematic before the mistake itself strikes. Do not ignore the annoying feeling that something just is not right. Try to head off a problem before it starts by consulting with colleagues about uneasy decisions. Mistakes are more often made when you are cornered into a client recommendation or decision you have not had the opportunity to fully think through. Call up your friends from law school and the bar association. See if they have faced a similar situation. Be available and helpful when one of them calls you up later, hoping to talk through an issue of their own. Pop into a welcoming neighbor’s office and talk through the issue and your thoughts. Look for any opportunity to talk a tricky situation through. Through this process you will hopefully be able to identify and head off future problems before they erupt, or at least contain the fallout.
Elizabeth Collura is a commercial and corporate litigation associate with
Clark Hill Thorp Reed in Pittsburgh, Pennsylvania, where she counsels
clients through business disputes and breakups, as well as litigates civil
rights cases and counsels clients on legal issues involving social media.
Elizabeth also writes a lifestyle blog about the Pittsburgh region at BeezusKiddo.