The Art of Error Recovery

When you make a mistake that puts a client behind the eight-ball, your appropriate response can salvage – and even strengthen – the client relationship

Norm Hulcher

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 Screwing the Pooch (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.

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, prostitutes 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.

Face the music. If the magnitude of the error, or the client’s reaction to it, warrants a face-to-face meeting, break the news in person. Offer to meet at his home or office. Meeting at your office may not be a good idea – it’s bad enough that you’ve made a mistake at his expense; don’t make matters worse by making him come see you. Besides, he’s less likely to bust up the furniture if he’s in his own home or office, and if he starts screaming there won’t be other clients within earshot.

Accept responsibility. No matter who actually committed the error, you must be the responsible party. If you made the mistake, it’s your fault. Likewise, if your secretary or paralegal or clerk or the mailman or sunspots caused the problem, it’s your fault. You’re the attorney, you make the big bucks, and you’re the one who’s supposed to be getting your clients out of trouble, not digging a deeper hole for them. Claiming, "Hey, it wasn’t me, it was my secretary," isn’t going to calm him down. ("Oh, it was your secretary. Why didn’t you say so? Here, let me call my other lawyer right now and tell him to just forget about that silly old lawsuit.")

Don’t be defensive. This is a close cousin to "accept responsibility." The client is less interested in why or how the mistake was made than in what you’re going to do about it. Thus, explaining that the error was caused by your working too hard or too late, by incompetent help, by your crack habit, etc., is a waste of breath and will only make him madder.

Say, "I’m sorry." An apology won’t make the problem go away, but any resolution of the fiasco should include your looking your client in the eye (or in the receiver) and telling him that you’re sorry. But don’t grovel, unless you think the sight of you down on your knees at his front door, blubbering and begging for one more chance, will make him forget about your foul-up. Also, be careful about putting your apology in writing. You don’t want to give your client something he can pull out and re-read when he’s drunk or in a litigious mood.

Respect the client’s concern. If the client pitches a major fit over your mistake, let him know that you feel nearly as bad about things as he does. If he feels terrible, you feel terrible. Trying to cheer him up or make him think it’s not that big a deal will likely backfire. Let him decide when it’s no longer that big a deal. On the other hand, if the client takes your mistake in stride and wants to get on with things, let him. Even if you’re still embarrassed and upset by the error, don’t keep bringing it up and saying how sorry you are and how you don’t deserve to live. He might eventually agree with you.

Don’t hang your clients out to dry. If your mistake lands your client in dutch with someone else – a lender, a buyer, his bookie – make contacting that person and accepting the blame a part of your proposed resolution. There are at least four good reasons to make that offer:

• It’s the right thing to do, and maybe it will assuage your conscience a little bit.

• Your client will probably appreciate your trying to get him off the hook, and if he ever speaks to you again he may even tell you so.

• You are likely to use less critical and colorful language to describe your error, your character, and your lineage than your client might use.

• Ironically, your candor and courage may make a net favorable impression on the third party. Instead of being known only as a dangerous idiot who nearly screwed up your client’s life, you may be the only attorney that person knows who demonstrates honor and integrity and is willing to own up to his mistakes.

Don’t keep your error a secret. If the problem is a major one, and if it carries the potential for big problems for you and/or the firm, get the perspective of trusted colleagues who may be more skilled in damage control and malpractice avoidance than you are. Even if the problem doesn’t hold grave consequences, consider discussing the error with any other attorneys and staff who are likely to come into contact with that client. Filling them in may keep them from saying or doing something out of ignorance that may only make matters worse.

Conclusion

At the very least, adequate error-recovery skills may salvage a client relationship that otherwise would have gone down in flames. Moreover, attorneys who react well to their own errors know that an appropriate response can not only save but actually strengthen their ties with a client. Honest.