“As lawyers, we are problem solvers so roadblocks and frustrations are going to happen.  We should never fear roadblocks — we should expect them and attack them head on.” — José Gonzalez, EVP & General Counsel, CNA, USA

Legal projects go wrong. Let’s admit that. We have all have tried cases that we should have tried differently, or not at all. Let’s admit that too. We can also admit that, among trial lawyers at least, discussion of failure is either taboo, or at least supplanted by philosophy:

  • “Some you win, some you, lose, it’s all swings and roundabouts”
  • “We just didn’t get the rub of the greens”
  • “That’s why we always caution for litigation risk”

These are exercises in post-project rationalization. This is where we tell ourselves comforting stories about the outcome of a project. While each of these sentiments might be true and justifiable, what they circumvent is accountability to the client and consequential learning. Clients almost invariably react positively to an admission from their lawyer that some or all of the project has failed, coupled with candid reasons why and insightful improvement suggestions. In the trial world, judges sometimes warn parties that ‘at the end of this, one of you is going to be unhappy.’ That always seems inaccurate — the correct caveat would be ‘at the end of this at least one of you is going to be unhappy.’

In contrast to manufacturing or other industries where mechanical mistakes can be blamed for failure, if a legal project goes wrong, human performance is pretty much the only factor. That’s not to say that the lawyer is the only human involved, or that chance, randomness, and capriciousness can’t play a part. But even so, if there are failings they won’t be mechanical. They’ll be human, and usually the focus will be on us, the lawyers. This is why we need to talk about mistakes.

If we evaluate information and events in this methodical way, we will be better placed to think about correction, either total or mitigation. In project management terms, an error state is an error state. It might be big or small, it might be human or serendipity. None of that matters — find it and fix it. There’s no reason we can’t talk about mistakes, including our own.

Lawyers make mistakes. It’s impossible to do our job and never make a slip, an error of judgment or a miscalculation. The thing is, if you’re evaluating your project carefully then most times the effect of your mistake will be something visible, and correctible. No one needs to disown them; they’re just error states. Find them early, don’t hide them, learn from them. That’s it.

Let’s focus on addressing mistakes. In a truly collaborative environment, the mantra should be: “The first thing we do is recognize a mistake, then we address it together, then learn from it”.

So that’s what we should do with mistakes.

But it might not be that simple. Lawyers are believed to have certain distinctive personality traits that matter when it comes to mistakes; we are often naturally independent, resistant to being managed, and sensitive to criticism, and maybe we even have an innate reluctance to admit errors. If this is so, then a lawyer who makes a mistake that goes unnoticed might be instinctively reluctant to draw attention to it.

This is why the cultural approach of the firm or legal department to errors is vitally important. As we have discussed, legal projects are dynamic, fast moving, and challenging. The work is often pressurized and requires effective teamwork We have seen in preceding lessons how errors can arise in planning, execution, or from external support. With the right culture, it doesn’t matter if things go wrong or who the culprit is. What should matter is that errors are detected and adjustments are made.

Any law firm or department with a blame culture is a danger to itself and its clients. Not only will correctable errors be more likely to remain undetected, but the firm will lose the opportunity to acquire valuable ‘learnings’ from the project and so improve.