The Art of Error Recovery by Norm Hulcher
W
hen you make a mistake that puts a client behind the eight ball, your appropriate response can salvage— and even strengthen—the client relationship. When Alexander Pope wrote, “To err is human, to forgive divine,” he probably hadn’t just gotten off the phone with his attorney. If he had, he might have tacked on this qualifier: “… unless the erring party has an ‘Esq.’ after his name and whose hourly rate is greater than the GDP of Cambodia.” I can’t say why for sure (although I have a few theories), but there’s something about interacting with an attorney that often exposes people’s dark sides. Consider an otherwise kind, charitable soul whose closest-ever brush with violence grew out of a brief debate over the best key in which to sing “Amazing Grace.” But tell them that their lawyer made a mistake in handling their matter, and in the bat of an eye they become about as rational and forgiving as Cujo. Like it or not, you are human and, try as you might to avoid mistakes, you are doomed to make them. The big question is: How do you respond when you make a mistake that affects a client? It’s worth considering—in advance—because there may be no more important factor in whether you hang on to your clients and how successful you are in growing your practice.
Range of Errors, Reactions As an attorney, your potential for committing errors knows no bounds. Your mistakes can cover the entire spectrum, from No Big Deal (missing a typo, being late for a meeting, etc.) to Total Fail (recording a lien in Santa Cruz County, Arizona, instead of Santa Cruz County, California; thinking the trial was set for two weeks from yesterday, not yesterday, etc.). From a client relations standpoint, the gravity of the blunder may not be as important as the client’s reaction to it. You probably have clients who, if you told them that you’d made a small goof and that their $10 million claim had been thrown out, would say, “Oh, well, we all make mistakes,” and others who, on learning that the demand letter you promised by noon won’t be ready until 12:15, report you to the Bar. Even though no two mistakes, or your clients’ reactions to them, are the same, you should still develop an error-recovery procedure that you can follow when the stuff hits the fan, or looks like it’s about to.
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Attorney Journals Orange County | Volume 187, 2021
Beat Your Client to the Punch If you find out you’ve made an error before your client does, and if there is any chance that he will learn about it whether you tell him or not, do the smart and honorable thing: tell him before he learns about it on his own or from someone else. This takes guts, but it’s a lot better than sitting around with the Sword of Damocles hanging over your head, cringing whenever the phone rings, and feeling around under your steering wheel before every start-up, wondering if the client knows what you’ve done and what he’s going to do to you when he finds out. Here are some benefits to full disclosure: • After he finishes swearing at you and telling you how much he’s going to enjoy reading about your license being yanked, he may give you credit for being courageous. Sloppy and incompetent, perhaps, but courageous. • Conversely, if you let him find out on his own, a certain amount of time will elapse between discovery and response. During that period, he can work up a pretty uncharitable attitude toward you that, by the time you get to discuss your mistake with him, may be irreversible (especially if he thinks you’ve been ducking him). • If you alert your client to the mistake, you can tell him, in appropriate detail, what you’ve done to make things right (if that’s possible), and/or you can propose some method of atonement, such as a fee adjustment, free services, an offer to help out around the house, etc. (Caution: Don’t be too quick to make such offers. If the client turns out to be less upset than you expected, you may needlessly give away the store. Further, your resolution plan should not include lavish gifts, cash, or other phony attempts to get back in his good graces.)
Fix the Error, If You Can Make fixing the error your top priority. The longer the problem goes unaddressed, the longer the client has to worry, think evil thoughts about you, and memorize the names of professional liability attorneys.
