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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 12:45, 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.
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