Reacting to Mistakes: Be Your Own Humble and Honest Advocate

“I messed up.” There is perhaps no scarier thought for a lawyer. Most attorneys genuinely care about their clients, and mistakes in the practice of law can affect people in significant and permanent ways. Lawyers tend to be high-achieving, ambitious people who do not like to lose and are not used to being wrong. The idea of making a mistake can be stomach-turning. The unpleasant truth, of course, is that everyone reading this article (even the authors writing it) has made and will make mistakes in their practice.

Although everyone makes mistakes, you control how you deal with mistakes and advocate for yourself after you make one. Make a “game plan” to deal with missteps. The first step is to control your reaction.

That Unpleasant Feeling Is a Good Thing

The sudden, sinking feeling that you messed up can frequently happen for a junior lawyer, especially those very early in their practice. You may find that a brief or a judicial opinion you drafted is returned to you covered in red ink, maybe with a note that you failed to consider a specific regulation that you had never heard of before. You may deliver a draft contract section to your boss or client, only to find that you missed a crucial contract term in researching for another matter. These types of errors become less frequent as you gain experience, become well-versed in your practice area, learn your supervisor’s preferences, and gain confidence in your skills.

When missteps happen, reframing how you think about mistakes can make it feel less personal, negative, and shameful, and more communal and positive. Take comfort that this feeling, while unpleasant, is a good thing and is a shared experience among lawyers—it means you care about your work and your clients, and everyone you work with has gone through it at some point in their career. Reframing how you view a mistake, in turn, makes it easier to use a mistake as an opportunity to grow and take the steps necessary to mitigate harm from the mistake as much as possible.

The second step in your game plan is to identify the type of mistake you’re dealing with, which will inform how you respond.

“Mistakes”

Just because someone says you’ve made a mistake does not mean you’ve made one. Your supervisors and coworkers slip up occasionally, too. If someone tells you that they think you’ve gotten something wrong, look back over your work with a critical eye and open mind. If you still believe you are right, you owe it to yourself and your client to bring the matter to your colleague’s attention. A tactful approach may look something like this: “You said I was wrong about citing this statute. Maybe I’m misreading it, but I went back, and it does seem to apply to this situation. Would you mind talking it through with me?” By humbly but firmly advocating for the decision your colleague took issue with, you may save them from making a mistake. If you ultimately find you were wrong, you will learn something you did not know before.

Courtesy Mistakes

You forget that your paralegal has the day off and call him while he’s with his family. You accidentally misgender someone you are meeting for the first time. We call these kinds of mistakes “courtesy mistakes” not to trivialize them, but because they do not necessarily directly affect someone’s legal position. These kinds of mistakes instead offend, reflect insensitivity, or hurt someone personally.

Lawyering is a service profession, and professionalism involves treating yourself and others with respect. When you make a courtesy mistake, a solid, non-defensive apology is your best approach. Do not minimize, make an excuse, or try to explain what you did; say, “I was wrong to [say what you did].” Show them that you take the mistake seriously by describing how you will avoid the mistake in the future.

A good apology may look like this: “Hey, I’m really sorry I bugged you on your day off yesterday. I value my off time, and I respect yours, too. I’m going to make sure I check the calendar next time, so I don’t do this again.”

Substantive Mistakes Affecting Representation

Unfortunately, you’re likely to make mistakes beyond courtesy mistakes in your practice. Some mistakes affect your representation, and these can range in seriousness from minimal harm (like having to rewrite a memorandum section) to severe (like missing a filing deadline). In general, the earlier you inform others on your team of a mistake, the more the damage can be mitigated. It is important not to “go it alone” when trying to fix a mistake. Hiding errors, while tempting, only makes things worse.

No matter what kind of mistake you’ve made, you can still advocate for yourself through the last step of your game plan: having a strategy for mitigating the effects of a mistake and avoiding making the same one in the future.

Advocate for Yourself

In practice, you may not even know that you are making a mistake until it is too late, especially if it is your first time making the mistake. Advocate for yourself by learning to recognize when mistakes may appear and having a strategy for preventing mistakes from happening. Below is a scenario to test your skills, followed by practical advice for developing strategies to avoid mistakes.

Assume you are a young lawyer who has switched jobs: before, you were a personal injury lawyer; now, you are in-house legal counsel. Can you spot the difference between these two scenarios?

1. Pedro Plaintiff and Diego Defendant get into a car accident. Both parties lawyer up. You represent Pedro. Can you communicate directly with Diego regarding the pending lawsuit?
   
2. As in-house counsel, you send your redlined vendor contract to your internal business partner. The next communication you receive is being CCed on an email from your business partner to the vendor’s sales representative indicating you can answer the sales representative’s questions about your redlines. Can you reply all and answer those questions?
   

If you thought it was ok to communicate directly with Diego or the vendor’s sales representative, you are mistaken. The scenarios are similar, and if you communicate with Diego or the sales representative, you risk running afoul of Model Rule of Professional Conduct 4.2 (or your jurisdiction’s equivalent). Under Rule 4.2, in representing a client (e.g., Pedro or your company), a lawyer must not communicate about the subject of the representation (e.g., the pending lawsuit between Pedro and Diego, or the contract provisions) with a party the lawyer knows to be represented by another lawyer in the matter (e.g., Diego or the vendor’s sales representative), unless the lawyer has the other lawyer’s consent or is authorized by law to do so. The rule is intended to avoid matching a trained lawyer against someone not trained in the law.

While you may not be a personal injury lawyer or in-house counsel, the above scenarios are meant to illustrate that mistakes can happen in your legal practice (including running afoul of professional responsibility rules).

Tips to Avoid Future Mistakes

Communicate Expectations to Others

Inform your client, support staff, internal business partners, etc., of your expectations, and discuss what they can expect of you. This is especially important if you have not worked with someone before. In scenarios like those above, you can explain to your client the limits of your (and your client’s) communication with the opposing party, or you can explain to an internal business partner that they, not you, are expected to communicate with the counter-party’s point of contact.

Have Template Answers Ready

For scenarios that routinely occur, save yourself time by having template answers or explanations ready to go in your email. You can modify these as needed.

Know the Rules

Inform yourself of the different kinds of rules that apply to your job. This may include relevant statutes and rules of court, your employer’s rules or policies, legal ethics opinions, and professional responsibility rules. You can reference relevant rules in your template answers if needed. In scenarios like those above, your client or internal business partner may appreciate knowing why you are taking a particular approach (e.g., because of the professional responsibility rule) rather than just being told that you cannot do something.

No matter your practice setting, you have some control over steering clear of mistakes. Adopt a game plan that works for you and keep improving it.

This article contains very general, practical suggestions about what we have seen as successful and what we try to do in our own practice; it is not legal advice. While not every mistake is malpractice or leads to a violation of law, some do. Use your judgment in responding to mistakes, and seek legal advice from competent counsel if you feel you have professional, criminal, civil, or other liabilities or risks.