7.9 Making and Recovering from Mistakes
Making and Recovering from Mistakes
Making mistakes is part of life and it is certainly part of law practice, although it is one of the least-acknowledged parts of legal work. Indeed, “It’s time to stop pretending that lawyers are perfect”. This topic is placed purposely in the chapter on “Ethics” both because the effects of not taking responsibility for mistakes can result in disciplinary action. However, this section gives some guidance on responding to mistakes to either prevent or minimize the negative consequences of mistakes.
Everyone makes mistakes, but in many professional disciplines there is a particular fear of making (or even speaking about) mistakes, and a de-emphasis on the importance of making mistakes to learning. Hence, the incentive to hide mistakes is significant. This is exactly the wrong thing to do as a student in a law office.
Former Students Talk About Mistake Making
In a set of interviews with former students, Professors Sarah Buhler and Gemma Smyth asked students about their more important learning experiences. Former students had important advice, some of which is canvassed elsewhere in this text. One major theme was the importance of making mistakes and responding to them responsibly.
“Acknowledge your faults. [Some students] think they’re the greatest thing in the world and they just don’t actually have any real idea as to what they’re saying. And guess what? If you’re a dick or you think you’re arrogant or whatever, go do that in front of one of the lawyers. I guarantee you they’ll tell you really quick that a judge isn’t going to appreciate that and you should probably tone it down or you should act differently or whatever it may be.”
“Mess up in front of [the supervising lawyer]. That’s the whole point. Guess what? The class is pass/fail…I don’t think there’s ever been a student that failed clinic at [the clinic] ever. Because if you did, I don’t even know what you would’ve done to fail. Did you just not try? Did you leave your files in abeyance for the entire time you were in the clinic? I don’t know what you did to not get a passing grade. It’s easy enough, but you only get as much as you put into it. So the student doesn’t want to make the effort, then they’re not going to get anything out of it.”
“[I]t’s important to look at your supervision in your review council and realize you have to follow on their instructions. But if you feel they’re making a mistake, address that, bring that up. And then if they say “no,” if she said “No, don’t call them again. Just close the file.” I would’ve done it and I would’ve respected that. But I’m glad that she looked at the scenario and said, “Okay, I’m respecting what you’re saying here. Go ahead and do that and we’ll carry on if they pick up the phone.””
“[D]on’t be afraid to mess up. You’re going to do it. I mean, as a junior lawyer, I’ve heard it enough from my mentors even here at my firm here, it’s like “You’re going to mess up. You’re going take kicks at the can. It’s not going to go well. Deal with it. It’s going to happen.” But also at the same time, take those successes and run with it. I mean, some of my proudest moments that I’ve had in my legal career came from when I was in the clinic…But it’s even things like that where you have the doubt – Try! It is better to try than not try.”
“Don’t be afraid of making mistakes or saying something dumb when you’re in clinic, because that’s the whole point… Most mistakes can be fixed if they’re caught early enough. If you see that you’ve made a mistake, tell somebody, because if you sit on it, it can get worse. If you don’t address it right away, it may very well get worse.”
“[I]f your supervisor trusts you in your second week to conduct a hearing prep for it as hard as you can, and they’re there if you’re going to fumble it up because this is the best way to learn. Because very soon you’re going to graduate, you’re going to get your license, and there’s not going to be any handholding. If you make a mistake that’s on you fully. So fully, fully make use of the clinic system to learn, make mistakes.”
“You get out of it what you put into it, and I think by showing up, being eager, making those connections with the other students and the supervising lawyer, that’s really where you can get the most out of that experience. And coming from my own personal experience, whatever you put into the clinic is going to pay off tenfold when you get to articling and beyond.”
Insurance & Causes of Complaints Against Lawyers
Like most professions, lawyers hold insurance (in Ontario, “LAWPRO” is the professional liability insurer). Students in an externship practice work under the license of their supervising lawyer. Any errors or omissions that occur typically have to be reported to the insurer. Avoiding claims in the first place is obviously the most prudent approach. LAWPRO releases data annually on the most common types of claims in various areas of law. By far the most common claims involve issues of communication between the client and the lawyer, including misunderstandings of client instructions, mismatched expectations between lawyer and client as to how often communication should occur, client misunderstanding of the implications of a resolution (especially in criminal matters), and associated issues.
Students can draw helpful guidance from this data including:
- Understanding the importance of regularly communicating with a client, even when nothing much is happening in their case,
- Clearly understanding why they are seeking your assistance in the first place and communicating this in a retainer. In other words, use high quality active communication skills,
- Ensuring that clients understand the full implications of any resolution of their matter, including the impact of one decision on other areas of their lives, and confirming your client’s instructions in writing,
- Documenting actions that have occurred in a file, and,
- Meeting deadlines, or planning for not meeting deadlines, is very important. (James Careless, “What to do when you screw up” (CBA National, 25 Jun 2019), online: https://www.nationalmagazine.ca/en-ca/articles/the-practice/young-lawyers/2019/what-to-do-when-you-screw-up.).
Anna Dorn, “Bad Lawyer: A Memoir of Law and Disorder” (New York: Hachette Books, 2021) – A Story of a Mistake
“One day I went to work at my internship and Fernando [the supervising lawyer] looked like he’d seen a ghost. I thought a family member had died…. I was scared to ask what was wrong, and luckily I didn’t have to.
“Anna,” he whisper-yelled. “Get in here.”
I nervously approached his office and, once inside, he quickly closed the door behind me. “I’ve been sanctioned by the Court of Appeal.” He continued to speak in a hushed tone.
I swallowed. A part of me was relieved. No one was dead.
“They say I misrepresented the law.” His eyes were wide with worry. He’d cited a case as supporting his argument when it actually held the opposite view… Put simply: He said a case said something it didn’t say.
I was shocked. Fernando was typically so meticulous… But I was also afraid. I didn’t know what would happen to him, whether he would be disbarred or what. Fernando’s job was his everything. Even though he often seemed to hate it, he didn’t appear to have much else going on in his life. I never heard him talk about boyfriends or going on dates. When he talked about his friends, they were mostly people from the office. “The office” made an appearance in nearly all of his sentences.
The situation was especially unfair given that the government misrepresented cases and facts all the time.
Also, the case Fernando misrepresented wasn’t a major case on which the appeal hinged. It was just a minor point cited in his reply brief… But we were representing criminals, which meant it was always an uphill battle… Beyond that, our clients were mostly poor people of color, and we all know how implicit bias works…
In a subsequent petition addressing the error, Fernando explained to the court that he wrote the brief at a time when his mom was very sick and he was preoccupied but that his mistake was innocent.
Finally, at a hearing where Fernando was interrogated by the entire panel – the court removed the sanctions.” (26-28)
What should a law student do if they make a mistake?
First, a law student has to report the mistake to their supervising lawyer. Students might feel totally overwhelmed in doing so, but most mistakes are much easier to rectify than one might think. It is important to document what happened – write “what happened, how it happened, how you realized it happened, and how you think it could play out”. There are quite practical things that are typically done in response to a mistake, such as communicating with the client, writing to the court to amend a file, and so on. Lawyers do have reporting obligations when a mistake is made, so speak with your supervising lawyer about this as well. To repeat, the student is working under the license of their supervising lawyer. A mistake will have consequences for this person. The lawyer sometimes has to report an error to the insurer and take other preventative actions.
Other Supports
The Law Society of Ontario also hosts a Practice Management Helpline, but this helpline is only for lawyers and paralegals licensed by the LSO. Students may receive services through the Members Assistance Program.
Students should also seek out supports from non-judgmental colleagues or other networks. Many lawyers develop a network of colleagues who are a “safe space”.
Mistakes are also learning opportunities. It can be hard to treat them as such, especially when shame and regret often accompany making mistakes. Engaging in some critical self-reflection can lead help avoid the mistake in future. It might also lead to improvements in firm or clinic policies to prevent similar mistakes in future.
Reflection Questions
- Think back to a mistake you made in another context. How did you feel when you made the mistake? What was your resolution strategy at the time (even if it was doing nothing!)? What were the consequences? What lessons can you take from this experience and apply them to an externship setting?
- Why do you think there is so much shame associated with making mistakes in law practice?
- In the vignette from “Bad Lawyer”, how does the lawyer react to being accused of misrepresenting a case? What does the author mean when she writes: “The situation was especially unfair given that the government misrepresented cases and facts all the time”?
