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All lawyers make mistakes. Some mistakes are minor, but others have serious consequences. But what many attorneys lose sight of is that the mistakes themselves don’t matter. What does is what lawyers do — or don’t do — to correct them. When attorneys discover that they’ve made a mistake, lawyerly instincts usually kick in: They rationalize that the error is harmless, use argument skills to deny that a mistake has been made, or, as every good witness is taught, refuse to own up to the mistake unless and until the issue is raised by someone else. In addition, because the obligation to protect client confidences forces lawyers to learn secrecy early on, many attorneys are naturally inclined to conceal their errors. But while acting like lawyers serves clients well in an adversarial process, lawyers don’t serve themselves — or their clients — when they apply these instincts to addressing errors. Ignoring, rationalizing or concealing mistakes only compounds them. Here are some common mistakes lawyers make — and the right way to handle them. TYPOS Perhaps the most common error that attorneys make is the lowly typo. Sometimes a typo can alter the meaning of a document (e.g., if an attorney omits a crucial “not” in a contact), but in most cases, typos are harmless. If, after filing a brief, however, an attorney discovers pervasive typos or citation errors in the brief, the lawyer should seek to correct the brief through an errata filing, a procedure that most courts allow. (It’s never too late to submit an errata filing to correct mistakes — just don’t charge for it in your fee petition!) Judges and law clerks much prefer documents with accurate page citations to the frustration of having to hunt down incorrectly referenced case quotes — and no lawyer wants to run the risk that the judge will transfer some of that frustration to the client. Failure to acknowledge errors can cost money. In Devore v. City of Philadelphia, 2004 U.S. Dist. LEXIS 3635, the judge refused an attorney’s fee request of $300 an hour and instead docked the attorney $150 an hour because of an overabundance of typographical errors in the papers the attorney filed with the court. (Among the errors in the attorney’s filings was the designation of the court as “District court for the Easter District of Pennsylvania.”) Although the attorney insisted (note: this is the rationalization instinct at work) that the errors did not detract from the arguments or the result of the case, the judge disagreed, finding that “the complete lack of care in [the lawyer's] written product showed disrespect for the court.” MAKING A MOUNTAIN OUT OF A MOLEHILL Sometimes lawyers will make an argument that sounds good at the time, but after reading opposing counsel’s papers, realizes it was a mistake. Of course, most lawyers don’t like to admit they’re wrong (particularly after an opposing counsel pointed out the error), and instead prefer to pursue an erroneous position rather than concede. Sometimes lawyers get so caught up in refusing to concede that they argue tangential issues and never reach the meat of their argument because they are so adamant in refusing to give in on minor points. Not only does this kind of strategy waste the court’s time, but by employing such a tactic, the attorney runs the risk of losing credibility with the court — which does not serve the client well. The moral here? If opposing counsel or a judge points out a mistake, admit it when it’s appropriate to do so, and move on. MISTAKES ESTIMATING A BILL Many times, when providing clients with an estimate of what a particular case will cost, lawyers come up with a figure that is well below what the case actually costs. Many of my colleagues believe that a mistaken fee estimate does not relieve clients of their obligation to pay in full, but I disagree. The lawyer — not the client — is in the best position to figure out how much a case will cost, and the risk of error rightfully falls on the lawyer’s shoulders. So, if I’m mistaken about an estimate, I eat the cost — unless the excess charges are due to a client’s failure to cooperate or to a completely unanticipated event, such as a change in the law. Paying for my mistakes may mean that I’m out a few thousand dollars, so to avoid that, I take special care with my estimates and often provide clients a range of costs that may account for various scenarios. In the long run, my clients appreciate that I stand by the estimate I’ve given — and they send me more business because of it. DON’T BLAME THE SECRETARY! My greatest peeve is when lawyers blame their underlings for their mistakes. Unfortunately, it happens frequently. Recently, in Pincay v. Andrews, 367 F.3d 1087 (9th Cir. 2004) a well-known law firm, Boies, Schiller & Flexner, argued successfully that they missed an appeal filing deadline because the firm’s paralegal miscalculated the due date. The court found that the mistake was excusable. But in his dissent, Judge Kozinski got it right, reasoning: “If it’s inexcusable for a competent lawyer to misread the rule, it can’t become excusable because the lawyer turned the task over to a non-lawyer.” When lawyers delegate tasks to non-lawyers or even to associates, they need to remember that in the end, they’re the ones who remain accountable for the others’ mistakes. Attorneys shouldn’t blame others for their mistakes — even if the mistake is failing to adequately supervise an assigned task. I have little respect for those who do. THE MOST SERIOUS ERRORS Lawyers sometimes commit a errors that have serious consequences. There are two remedies for such mistakes: malpractice insurance and full accountability. In a worst-case scenario, a client will sue or seek disciplinary charges against a lawyer who has committed a serious error, such as missing a statute of limitations. Malpractice insurance covers costs related to defending any grievance or malpractice actions and payment of any judgments or settlements in such proceedings. (Lawyers should put their carriers on notice as soon as they discover their errors — don’t wait until the client files suit.) Malpractice insurance is not as expensive as many lawyers imagine, and it buys peace of mind — attorneys can rest easy, knowing that if they do make a mistake, it won’t end their career or bankrupt them. Equally important to malpractice insurance (but not a substitute for it) is the willingness to step up to the plate and take full responsibility for making a mistake. When lawyers are honest and contrite about mistakes, many are forgiven almost immediately. The best example of this is a poignant post by blogger Uncivil Litigator (UCL). UCL is a law firm associate who, because of a series of personal crises, missed an important deadline. UCL could have tried to conceal the mistake or blame it on someone else, but he did what so few lawyers would do: He walked into his superior’s office, admitted that he made a mistake and described the intensely personal circumstances that distracted him from his work. At his superior’s suggestion, UCL called his opposing counsel and did the same. Because UCL was forthright, opposing counsel agreed to forget about the deadline. I’m sure that none of this was easy for UCL, but the way he handled his mistake — honestly and without excuse — impressed me. He’s the type of lawyer I’d want to hire. No lawyer wants to make mistakes, but sometimes they’re unavoidable. The most lawyers can do is resign themselves to the fact that when they do make mistakes, they have an opportunity to learn from them. But when and how lawyers correct their mistakes says a lot about the type of lawyer they are. Which type are you? Carolyn Elefant is founder and principal attorney with the Law Offices of Carolyn Elefant in Washington, D.C., and counsel to the Law Offices of Scott Hempling in Silver Spring, Md. In 2002, Elefant created My Shingle.com, a Web log for solo and small-firm practitioners and lawyers who dream of starting a practice. Elefant invites inquiries about her law practice or starting a law firm by e-mail at [email protected] Read Elefant’s bio.

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