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If to Err is Human, and Lawyers Can't Err, Are We Still Human?

 

If to Err is Human, and Lawyers Can't Err, Are We Human?

 

There is a lot of literature about lawyers having perfectionistic tendencies. The corollary to this is that lawyers fear making mistakes and that we do everything we reasonably can to avoid them. But the reality is that lawyers make mistakes because we are human, and we need to come to terms with how we cope—using positive adaptive strategies—when the inevitable occurs.
 
When I was a young lawyer, a long time ago and in a century far away, I practiced securities law. I loved corporate documents, particularly public company disclosure documents like prospectuses, because I could nitpick my way to something close to perfection—in the sense of ensuring that there were no errors in our documents and that they complied with all filing requirements when they were filed with securities commissions. As securities lawyers, we were very fortunate to have clients whose legal budgets allowed for intense review and proofreading by teams of professionals: lawyers, accountants and consultants.
 
Prospectuses were printed by commercial printers, and since this was pre-digital, typesetters would manually prepare each draft. There was no spellcheck or find and replace function. Instead, junior lawyers and articling students proofread ad nauseum until everyone on both sides—the company and the investment bank—were satisfied that the prospectus was error-free.
 
Was the disclosure qualitatively perfect? It is hard to say. After you filed your prospectus, you waited for the inevitable staff comments so, likely, no. Our goal was to make sure that the documents stated “the Corporation is now solvent” and not “the Corporation is not solvent!”
 
One of our favourite jokes concerned a young lawyer at a big New York law firm working on deal teams. Deal teams were given colour names, so the Blue Team would get a deal, and then the Red Team would be up etc., but sometimes more deals appeared than there were teams, and lawyers who had already worked long hours for days had to pitch in.
 
In this story, there was a Canadian lawyer who decided he wanted to break into the big time. He was admitted to the NY bar and worked on Team Red at a Wall Street firm. Team Red had just finished a huge transaction and the associate had been told he could have the weekend off. His girlfriend arranged to fly down from Toronto for the weekend, but as he was getting ready to leave to meet her plane, he got a call telling him that Team Red was up again. It shouldn’t be too bad, the partner said, and he might get to see her for Saturday night and Sunday. He got her settled at his place and told her that he would be back as soon as possible. But things didn’t go smoothly, and he wasn’t free until Sunday evening when he was able to escort her back to the airport.
 
He then returned to the office and wrote his letter of resignation. He told the partners that final version of the prospectus on their deal was typeset and ready to print, but that he had put the word “F***” in the text four times. And then he left.
 
The partners went ballistic and called in the teams of every colour in the rainbow and had everyone reading the prospectus. “Found one,” an associate called, and later another called “Found the second one.” Much later into the evening, a third F word was found but there was no sign of the fourth one. The teams started over at the beginning anew and reviewed the prospectus all night. Our Canadian lawyer’s parting gift to the firm he was quitting: he only put the word in three times.
 
Mistakes were made when prospectuses were drafted, edited, and finalized, but we had the luxury of teams who had our backs carefully watching for errors. Practicing law in this setting made making mistakes less scary, and finding typos or nits was like a game where we all played to win.
 
But most other practice areas do not have the luxury of teams of people reading, critiquing, and perfecting what lawyers do. Most files can only support a more modest budget, and the lawyer or student is expected to do a professional job on the file regardless of how much time the matter can afford. This is where mistakes get scary—you are largely on your own and while you might catch a mistake, you are not superhuman, and catching your own errors like missing words or typos is difficult because you know what it is supposed to say. And you don’t know what you don’t know, so you can’t catch these errors yourself.
 
The scariest mistakes may relate to litigation files, where missing a limitation date or naming the wrong party or failing to plead an essential part of the claim can have very serious consequences.
 
Before I became a securities lawyer, I briefly tried litigation. I had been “gifted” a file by a lawyer who was changing practice areas. The Statement of Claim had already been filed but needed to be served forthwith. Being a paranoid young lawyer, I reviewed the rules for service and read the file numerous times, and then followed the instructions from the transferring lawyer and served counsel for the defendant just before the limitation period expired. To my surprise, I received a phone call from that opposing counsel a few days later. A settlement offer, already? But no: she had called to tell me that since the limitation period had now expired, she could tell me that we had sued the wrong corporate entity. Have a nice day, she said flippantly as she terminated the call.
 
My blood ran cold, and my heart nearly stopped. Full-blown panic set in. My reaction was flight, not fight, and I ran, literally, to the office of the lawyer who had drafted the Statement of Claim. Feeling doomed, we camped out in the office of a senior partner expecting that we would be reporting ourselves. The partner thought it might not be as dire as we did (and I really can’t remember the rules well from the mid-1980s!). I was excused from the discussions and the file was transferred to the senior partner. I don’t know how it was resolved. But I do know what happened to the lawyer who had made the error: nothing at the time, and certainly nothing that impeded being appointed to the Bench.
 
So, while I knew that the world didn’t necessarily end if you messed up, I was very grateful to the level of staffing on securities files.
 
My biggest fear was that I would make a mistake that would live on in infamy in firm lore told about lawyer and student errors. At my firm, there were three types of lawyer mistake stories. There were the newbie lawyer or student who didn’t know something (like a lawyer who followed his client into the prisoner’s box on his first court appearance), and then there were more serious ones that were labelled as either Career Limiting Errors—CLEs—or, more seriously, Career Ending Errors—CEEs, which usually ended in the lawyer being fired.
 
But the reality is that mistakes happen, even ones that are potentially serious, like naming the wrong entity and learning of it after the limitation period had expired. And the world doesn’t end—you dust yourself off after a minor error, vowing to learn from it, and if it was more serious, you seek help either from a senior lawyer or perhaps one of the Practice Advisors. You do not have to go through a mistake alone.
 
If we accept that mistakes will happen, then it is what you do on finding the mistake that separates the wheat from the chaff. You will first determine if you need to report your error to Alberta Lawyers Indemnity Association (ALIA). Again, the Practice Advisors can help you. Their advice is confidential.
 
At our Red Mug Coffee Circle on Monday, November 15th, Jessica Dorsey, Claims Counsel at ALIA, will be taking us through when and what we need to report to ALIA. Everyone is invited to join us since everyone can make mistakes.
 
Then, at our November 22nd Red Mug Coffee Circle, our senior peer support volunteers will be talking about how to communicate either to your client or the more senior lawyers at your firm in the wake of an error. We will not be categorizing mistakes as Career Limiting Errors or Career Ending Errors, but we, along with Jessica, on the 15th, will be reinforcing the message that trying to hide your mistake can void your insurance coverage and raise issues about your integrity. And issues about your integrity—well, those can be Career Limiting or Career Ending. Every story that I have heard over more than 30 years of practice that involved a lawyer trying to cover up an error ended badly. Period.
 
Acknowledging mistakes can build trust and, according to a recent article, can even result in better work on behalf of your client.
 
How do we cope when our perfectionistic tendencies and our human imperfection collide? Some perfectionists are adaptive—they strive to reach to high standards, but when they fail to meet those standards, they learn from what went wrong, accept what happened and stay engaged.
 
Unfortunately, many perfectionists have maladaptive tendencies: they set unreasonably high standards, fear failure, and are harshly self-critical.
 
This chart summarizes differences between adaptive and maladaptive perfectionism:
 
 
If you relate to the descriptors in the Maladaptive Perfectionism column, do not despair—having maladaptive perfectionism characteristics does not mean you are doomed to failure! Counselling can help you incorporate adaptive strategies, including eliminating all or nothing thinking. One of the best strategies for countering Maladaptive Perfectionism is self-compassion. If you have compassion for yourself—the type of compassion you would extend to someone you care about—you can forgive yourself and experience hope. Remember that Assist counsellors are here for you, and that crisis support is available 24/7 at 1-877-498-6898.
 
We need to accept our inability to be perfect and act responsibly when we err. We can do this by not humiliating our junior colleagues when they make mistakes by telling stories to colleagues and friends where they are the butt of the joke. Humour is a stress management technique, and it helps restore our fight-or-flight physiological state to its pre-stress equilibrium, but doing so at the expense of an individual’s confidence is harmful.
 
Can you tell the story without the lawyer’s name or identifying characteristics? And can you normalize by saying “and of course a new lawyer might not know x” because we may know law when we graduate, but our exposure to other aspects of business and life may be somewhat limited. Further, if you are a more senior lawyer, what can you learn about how you can fill in the blanks in a new lawyer’s knowledge banks?
 
In addition to inviting everyone to our Red Mug Coffee Circle on Monday, November 15th at noon, I am also inviting you to send in stories of imperfections in your legal history so that we can share carefully edited versions in upcoming Closing Corners (once we finish with cute puppies in costumes.) Some will be funny, and we will laugh with you rather than laughing at you, and others may serve to remind us that we will make mistakes, and we will fix them professionally, and continue to be good lawyers who learn from our mistakes, and don’t make the same mistake twice. Names will not be attached to stories, and transcript excerpts are welcome, so please dig into your collection of funny questioning gaffes (we will also remove any identifying details or you can do so before you send them in.)
 
Since my stories aren’t very funny, I am going to share my favourite word processing error story—this is back in the day when lawyers used Dictaphones and assistants then typed the document. I was acting for a company whose CEO was a rugged guy who was also very charming. I dictated the agreement, which included a requirement that the corporation have and maintain what was then called key-man insurance on the life of the CEO. This was a type of coverage appropriate to organizations where one individual, like our rugged CEO, was the essence of the company and whose loss would be catastrophic.
 
I picked up my typed document several hours later and began the next stage of editing. But I burst out laughing when I reached the mandatory insurance clause—instead of a requirement for “key-man” insurance, it read “he man” insurance.
 
There was no reason that a young assistant would be familiar with this terminology, so I explained it to her, and we had a good laugh together. And I never told the story to embarrass or humiliate her. We laughed together, not at her mistake. It wasn’t career-limiting or career-ending error—it was an opportunity to learn, and I always protected her identity when I told the story!
 
 
Loraine