January 2016

I am sure Simon and Garfunkel never thought their lyrics would find their way into the law (this line has been used by judges in their opinions, so I am not breaking new ground) but when a line fits so perfectly, it is hard not to use it.  In August, I wrote a New Normal Column for the ABA Journal, How Lawyers Can Embrace MistakesIt was premised on a simple logical syllogism. Lawyers are humans. Humans make mistakes. Therefore, lawyers make mistakes.  The column suggested that lawyers learn from their mistakes so they can avoid making them again, and therefore be better at what they do.

You would have thought I had tugged on Superman’s cape. How dare I raise the mere possibility of lawyers making mistakes.  The first comment addressed an issue I did not:

CHRISTIE WAGNER said:

Yes, dear Patrick J. Lamb. Let us embrace our mistakes, such as missing statutes of limitations and whatnot. Don’t our mistakes just empower us? Gag. How about doing all you can NOT to make a mistake and then doing all you can to rectify it and if you can’t do all you can to make amends? Hmm?

Of course, I never encouraged lawyers to make mistakes.  It seems as obvious as the sun rising in the east that avoiding mistakes is a good thing.  Same thing with making amends.  But if tried to not make a mistake and failed, and after you make amends, you still have lessons to learn so you don’t find yourself in the same position. The other part of the comment that struck me is how the author heard “mistake” and went directly to missing the statute of limitations.  There spectrum of mistakes is a long one, from not allowing enough time to draft a brief, to deposing witnesses in the wrong order to blowing a statute of limitations.

But at least the first comment seemed to acknowledge the possibility that lawyers could make mistakes. Another said this:

associate said:

Mistakes are simply unacceptable.  That’s the reality of our profession, especially since the law schools and ABA have flooded it with excess attorneys.

Apparently in the years since I went to law school, law schools have learned how to graduate perfect associates.  I would have thought they would have publicized that development so we would know and understand that when we think our associates make mistakes, it is really not a mistake.  I’ll attribute that comment to youthful exuberance.

Of all the comments that struck a chord, this one takes the prize.

musiclawyer said:

Well, I am resisting the premise of this article Raj (rejecting it, in fact). But the premise is not that lawyers make mistakes; the premise is in the headline: Embrace your mistakes, specifically by continually doing “A3s” (After Action Reports) in a non-privileged manner and then sharing them with colleagues in a public manner.

Would you, as a lawyer, tell your Doctor-Client to continually put together a list of their possible errors and send the lists out to colleagues? Of course not, that would be malpractice.

This is pop-psycholgy, not law. Let´s get real folks!

The idea that doctors would identify their errors and share them with their colleagues? Oh wait.  They do that.  As Wikipedia explains:

Morbidity and mortality (M&M) conferences are traditional, recurring conferences held by medical services at academic medical centers, most large private medical and surgical practices, and other medical centers. They are usually peer reviews of mistakes occurring during the care of patients. The objectives of a well-run M&M conference are to learn from complications and errors, to modify behavior and judgment based on previous experiences, and to prevent repetition of errors leading to complications.

Morbidity and Mortality conferences have long been part of the practice of medicine, having originated in the early 1900s with Ernest Codman at Massachusetts General Hospital in Boston. He lost his staff privileges there after suggesting the evaluating of surgeon competence. Codman’s ideas contributed to the standardization of hospital practices — including a case report system that ascribed responsibility for adverse outcomes — by the American College of Surgeons in 1916. As the medical profession evolved, physicians grew accustomed to discussing their errors at mortality conferences, where autopsy findings were presented, and in published case reports. By 1983, the ACGME began requiring that accredited residency programs conduct a weekly review of all complications and deaths.

Doctors do it.  Businesses do it.  But we lawyers?  Well, we’re special. We delude ourselves into thinking we do not make mistakes. As a competitor, this is good since it gives those of us who accept our humanity and accompanying limitations a competitive advantage.  But for clients, this mindset is a challenge and depletes an asset clients would live to maximze–helping their team avoid making the error in the first place.

In a strange turn, the first commenter missed the fact that he or she knows about the importance of not missing a statute of limitation because someone made a mistake and others chose to learn from it. As a result of people learning from a mistake, fewer mistakes are made.  Imagine that.

A man hears what he want to hear….and disregards the rest. Disregarding the rest is not always the best move.  Lawyers are not special.  The lessons other professions and many businesses have learned can help us be better.

If you learn a lesson, you are unlikely to repeat the mistake you made.  Consider this like turning on a flashlight while walking around in the dark.  It helps you avoid running into a piece of furniture.

If you learn a lesson and share that lesson with others, your colleagues, your outside law firms and more can learn and avoid the mistake you made. This is akin to turning on bright overhead lights so everyone avoids running into a piece of furniture.

While this is really an obvious insight into the obvious, there are roadblocks that get in the way of making it so. I’ve written about some of these before (in my New Normal column)–I encourage you to read the comments because they illustrate the problem as well as anything.  My next column is going to talk about the value of lessons learned from the client’s perspective.

I wrote a series on Signal and Noise here, here and here.  The problem clients confront is that most law firms look and sound alike.  When we started Valorem in 2008, no one was talking about alternative fees, no one was offering alternative fees and the world, by and large, thought we were crazy.  Now, of course, everybody claims they offer non-hourly billing.  The only problem, really a minor one, is that few of the firms making such claim can explain how their proposed fee differs from an estimate of what they would charge on an hourly basis.  The challenge for clients, which is specifically address in the second and third post, is about how to differentiate between true signal and mere noise.

I recently received the January/February issue of Law Practice.  The cover featured two stories on client service, including the aptly-titled Let Client Service Be Our Watchword. It appears that more is being said and written about the importance of client service than every before, which means that every law firm will start talking about how important [fill in blank] client service is to them.  They won’t actually change anything, they will simply talk about the importance of [fill in blank] client service so they cannot be immediately identified as not making [fill in blank] client service a priority for the firm.

The hard truth is that client service is not a policy you adopt, or a marketing department gimmick.  It is part of a person’s DNA, a product of extensive training and an institutional commitment that few firms know how to, let alone are willing, to make. Clients deserve more than noise.  What and how you do it should be something that can be shown.  What are the design elements that show that client needs and desires were the drivers of the design?

There are a number of questions like this a client should ask to separate signal from the noise, and I’ll address those questions in a future post.

Here’s just a flavor for the reasons the author provides in this must-read article:

  • Disrespectful: Being on time is about respect. It signals that you value and appreciate the other person. If you don’t respect the meeting’s participants, why are you meeting with them in the first place?
  • Inconsiderate: Unintentionally being late demonstrates an overall lack of consideration for the lives of others. You just don’t care.
  • Big-Timing: Intentionally being late is about power. It’s showing the other person, or people that you’re a “big deal” and have the upper-hand in the relationship. It’s also called being a dick.

Say Amen.