September 01, 2011

Sidebar: Screwing up

All lawyers, even the best, make mistakes. How to best avoid them? Preparation and attention to detail--there’s no substitute.

Kenneth P. Nolan

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I remember them all. The time I was too lazy to read 842 pages of the hospital record and, after the jury tossed me in the gutter, a smart-ass juror asked pointedly why I didn’t mention the nurse’s note hidden on page 496.

Or when I left my expert’s report on my desk and the judge, fat face filled with frustration, held out his hand for the document and, when I mumbled “I can’t find it,” quickly and viciously granted defendant’s summary judgment motion. Or when my neighbor Mrs. McMorrow called, sobbing that she was knocked down by this gigantic, vicious dog—he put his paws on my shoulders and now I have a broken hip and I have to get screws and plates. I started the lawsuit only to discover that the dog was one of those tiny Paris Hilton pets, weighing about the same as one of my chins.

Plenty more too. Some known only to me and God and that you couldn’t get me to disclose even if you made me listen to Joe Biden speeches all day. They’re not on my website or in the propaganda that sits neatly in our reception. Yeah, there were times, too many of course, when I didn’t study all precedent, didn’t read every word of every document, didn’t go over and over every possible question before my client, at his deposition, admitted he wasn’t looking.

Many lawyers only boast of their brilliance, insight, eloquence. They stalk jaded courthouse halls hunting for a slight smile, a nod, ecstatic for a murmured “how ya doin’” so that they can stop and harangue about their latest ploy, unctuous conceit spilling down bubbly red ties onto cheap shoes.

Not me. I make mistakes, lose cases, don’t win all the beauty contests. Clients, foolish and delusional, have fired my butt. Hey, one of my partners might read this, so I have to add that these errors, these missteps have been infrequent, rare, hardly ever. After all, I endured 30-plus years in this profession, and my successes, not all front-page material, have allowed me the privilege of paying myriad cell phone bills, outrageous car insurance premiums, and four tuitions at Boston College.

So, I’m here to tell the truth. Especially to the youngins whose clear eyes and crisp smile can’t hide their anxiety, their concern that they’re not clever enough, confident enough, aggressive enough to please the partner, the firm, themselves. At a recent football game, I ran into one of my daughter’s friends who would soon start at a prestigious large firm, one that would have tossed my résumé in the trash. You’ll be fine, I counseled. You’ll do great. Disbelief, fear. But she will, because those accomplished partners ain’t perfect. You pull back the curtain, and most are bright, hard-working, experienced litigators. But Clarence Darrow? Not even close.

My epiphany occurred just before I tried my first case. Mrs. Sysko fell while leaving an elevator from a cruise ship at a terminal on the West Side of Manhattan. Maybe she broke her arm or twisted her back, which is why I was given the file. No offer. I had never even seen a jury trial, never mind participated in one. I arrived early and waited for the courtroom to be unlocked. Across the hall was a trial, and since I didn’t even know where to stand when questioning, I slipped in. Two older guys were trying a nonjury matrimonial brawl. They looked the part of skilled trial lawyers.

As each fumbled through the piles of strewn documents, their questions sounded like this: Do you mean to tell me, that, er, on April 16, you—I mean, withdrawn, Your Honor. On April 16, did you or anyone you know ever see the defendant, er, Mr. Smith, raise his voice to his son Tommy—I mean, Timmy outside their home at 1498 East—I mean, 1948 East . . . .

Totally incomprehensible. Each was equally horrendous, stumbling around, confusing figures, dates, names. The judge rolled her eyes, interrupted, tried to make sense, and failed. All lawyers don’t speak in complete sentences perfectly enunciated? They’re not all Perry Masons? If this is the norm, I concluded, I can do this. P.S., My jury awarded Mrs. Sysko $75,000.

Sure, there are some who are so eloquent, so knowledgeable, so prepared that every moment of trial runs smoothly. But very few. Heck, I can’t sit through most depositions because the questioning is convoluted, exhibits can’t be located; there’s no rhythm, no pace. Pure torture.

So, get used to it—you’re gonna screw up. And often. Especially when you start, little baby counselors sitting up straight, reading the file, paying attention. You’ll miss typos, not cite a case, fail to adhere to the judge’s rules. The list is endless. Do me a favor—don’t miss a statute, fail to plead or answer properly, or miss a deadline for a judge who actually enforces them. Try not to have your case dismissed. That’ll cause nightmares that last, well, forever.

You learn through mistakes, or near disasters, forgetting to contest an affirmative defense of lack of jurisdiction until a week before the statute runs, or serving notice on the wrong municipal agency only to have the bored clerk bark: “Hey, shouldn’t this go to the Corporation Counsel?” I used to read legal malpractice decisions not to revel in the misery of others, although sometimes an evil smile would creep to my lips, but to learn what errors to avoid.

Avoiding Blunders

How, then, do you prevent blunders, from overlooking a crucial case to having your expert barred from testifying? Preparation and attention to detail. There’s no substitute. Read all documents, every stinking word. Today papers are computer produced: Fifty-page complaints appear in minutes, rogs and document requests in seconds. Read them. Make sure they include what’s required. Are all affirmative defenses listed? Were punies pled properly? Every case is different, so don’t rush, take a breath, think. Just because they’ve been used religiously for the past decade doesn’t mean they’re perfect.

Request assistance, another set of eyes or two. Don’t believe you’re infallible. More important, don’t be afraid to ask the simple, elementary question. Does my argument make sense? What did I forget? Should I request other documents? Is this answer to rog number 987 correctly worded? Sure, some immature gasbag like me will brand you brainless. So what? You’d rather be summoned to a crowded corner office to hear dreaded words: “I guess we have to notify our malpractice carrier”?

When in doubt, ask everyone who’ll listen, whether senior partner, newest associate, or para. Get help. You’ll need it.

Check and double-check. Of course, there’s never enough time. Six assignments are due by day’s end. Be forewarned. Every year a front-page story describes how a typo causes agita. The prospectus listed September 1, 2008, as the date instead of 2009, which costs millions in damages, additional litigation fees, and malpractice premiums. Or when the amount of the mortgage was supposed to be $92,885,000, but a secretary omitted the zeros and $92,885 was repeated through the documents more than 100 times. Ouch.

Don’t rely on others. Sure, the firm has a calendar system that tracks deadlines. Since I never trusted a soul, I kept my own as well. Heck, when I had to file an important document or interview a crucial witness, I did it myself. I’d ask the clerk a hundred questions just so I wouldn’t wake in the dark listening to the mournful foghorns from the Narrows chanting a requiem to my career. If essential, jump on the subway, hop in your car. Sure, it’s easier to lounge in your office, but it’s your livelihood, your life. You learn by doing, not delegating.

I mocked my father when he would spout: “You won’t know anything until you’re 50.” I’d arrogantly mouth the Dylan words: “Your sons and your daughters are beyond your command, your old road is rapidly agin’.” My college friends and I knew how to end war, hunger, and discrimination. All before we were 21. Now that I comb gray hair, I appreciate my dad’s wisdom. Experience is the perfect educator. Along the way, you’ll take some body blows and sport the occasional black eye, but you’ll survive wiser and more efficient.

Know your limitations. I once agreed to aid a friend whose rat of a husband wanted a divorce. She moved back with Mom. No kids, no house, no real assets. Simple, right? Until my client called one evening and advised her husband was away and she’s going to clean out the apartment, OK? After I stopped my Ralph Kramden “humina, humina” imitation, I admitted I had no clue and advised her that she should immediately contact a colleague who specialized in this craziness.

Nothing in our biz is easy. If it’s beyond your knowledge, experience—no matter how lucrative—refer it out, or co-counsel with another who has expertise. The quickest way to become a defendant is to take a dog case believing a nasty letter or two will make everyone happy, only to realize suit must be filed followed by numerous motions, depositions, and, sadly, a long, losing trial. Unreasonable clients—are there any other kind?—demand time, money, patience. Eventually, you either ignore the dreaded file or neglect more significant, profitable work.

I don’t care if it’s your mother-in-law. If it’s not viable, not worth it, politely decline and provide a list of competent attorneys. The best cases are the ones you don’t take. She’ll never like you anyway.

So when your face turns scarlet, when you assume you’re the worst lawyer in the universe, when you’re chewed out by some pompous pharaoh, remember that we were there. We all mess up, even Derek Jeter. Relax, hang in there. You’re never as good as you imagine, nor are you as bad as you believe.


Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, New York City.