WHEN A LITIGATOR MAKES A MISTAKE

Nobody Likes to Admit Making a Mistake

The internet and newspapers are full of stories from your colleagues describing their successful outcomes in cases, large jury awards, and settlements achieved under difficult circumstances.

But think about how often you have seen a posting from another lawyer titled:

“The Biggest Screw Up of of My Career!”

“The Dumbest Thing I Ever Did in Court!”

Not that often, right?

And why?  Because nobody likes to hold out their mistakes for the public.

While we all strive to do the best job possible for our clients, it’s inevitable that, from time to time, we may make a mistake in the way we manage litigation.  If you do make a mistake, here are some tips — a list of  10 DOs and DON’Ts for how to proceed.

10 Strategies for When You Make a Mistake in Litigation

1. Don’t Panic.  How you react after making a mistake is often more determinative of the gravity of the error
2. Do Process the Mistake.  Take time to understand the nature of the mistake and any potential consequences for your client.  Avoid the temptation to deny the existence of an error.  Don’t minimize the seriousness
3. Do Tap into the Hive Mind of Colleagues, Mentors, Family and Friends.  Accessing a collective brain trust is often the key to finding a way out.  So find those people whose judgment you trust, and bounce thoughts and solutions off of them.
4. Do Fix the Mistake, If the Mistake is Fixable.   This may sound obvious, but for litigators who are used to achieving at a high level, it’s difficult to come to terms with an error.  There may still be an opportunity to revisit the issue with your opposing counsel or the judge.  Spare no effort to fix the mistake.
5. Do Ask Yourself How You Can Work Around It, or Compensate in Other Ways for the Error.  Think what you might do to lessen the severity of the error, or mitigate its consequences.
6. Don’t Blame Other People for Your Actions.   Own the mistake.  Law clerks, junior associates, legal assistants are all easy targets for misplaced anger.  Don’t make your relationship with them a casualty of your error.  Instead, let them know what’s going on, and enlist their assistance.
7. Don’t Conceal an Error from Your Client.  Obviously, you should disclose any error which might have a substantive effect on the outcome of your client’s case.  Failing to do so may compound the problem.
8. Do Strategize How to Avoid the Mistake in the Future.  Many errors arise from circumstances which seem far removed from the event.  For instance, if you made an error objecting to a piece of evidence, perhaps your pre-trial preparation was rushed.  Ask yourself how to create an environment which will help you avoid the error the next time around.
9. Don’t Keep to Yourself How You Feel About What’s Happened.  There’s almost nothing worse than sinking into the lonely abyss that comes with a guarded secret.  Find an opportunity to give what happened light and air.  Talk to a trusted colleague.  Speak with a counselor.  Talk to a member of the clergy.  While you may be busy trying to fix the error, don’t forget to engage in good self-care.
10. Don’t Let the Mistake Define You.  Understand that you’re bigger than a single mistake.  Virtually any error will — across the spectrum of a career — likely be a blip on the screen of your life.

Turn any and every mistake into an opportunity to learn and be better the next time.

In my first year of practice, I went into court with an emergency motion for injunctive relief.  I lost that motion — and only because an affidavit I prepared was not in the proper form.  The judge pointed it out to me, in a room packed with more senior lawyers.

I felt really shaken by it for a few minutes

Then, I charged back to my office to read my rule book to see where I messed up.  That mistake caused me an additional 3-4 months of litigation time and probably another hundred hours of my (uncompensated) time.

In the last 25 years since that day, I’ve won each similar motion that calls for the same type of affidavit.  And I have successfully defended against motions when another attorney makes the same error I did.

No that long ago, I ran into the judge who denied me the first time.  I thanked him again for pointing out my mistake and making me a much better, and more careful, lawyer.