Everyone agrees that at least some mistakes are good for the person making them. They are immensely good education. They increase the likelihood that errors will not happen again.
I have made three that I vividly remember, though I’m sure there have been more, just as there have been such things for all lawyers.
M#1. When I was in law school, I clerked for my Father, a criminal defense lawyer. I cited a case; he repeated it to the federal judge, and the U.S Attorney politely pointed out that his exegesis was wrong. My Dad was very kind and polite, but the incident discouraged that kind of error for years and years–even up to the present day. (Of course, there always controversial interpretations; that is inevitable. If fact, if that does not happen, the lawyer who is “error” free is not practicing real law.
M#2. In the summer of 1980 I rode the city bus to work in Dallas. I had no money just after I got out of law school. I was reviewing a brief while riding downtown. I left the draft of my brief on the bus. It got turned over to opposing counsel by Dallas Transit. He called me immediately, told me he had not read it (and I was then and am now telling the truth) and offered to send it back or invited me to drop by his office and pick it up. I did; we had coffee; and I have done some expert witness work for him over the years.
M#3. Again, in the early days, I did not notice that there were Requests for Admission in the file when it was transferred to me. Well more than the 30 days ran. I did not answer them, since the time had already run out, and there had been no motion, I filed a MSJ and prevailed. That lawyer seemed to be a fine fellow, so I’ve never said anything about it. The hearing and the coffee treat afterwards, were the only time I ever actually met him. My sense of smell, the color of his face, the slight shake in his hands, and the fact he took aspirin at coffee told me what had gone wrong for him.
(Those of you who are inclined to matters of religion seriously will be tempted to say that I was being looked after, and some might say that I was being saved from myself.)
There is a final incident that I still don’t know what to make of. Before I joined another large law firm and while I was solo practicing, I brought a small antitrust case on behalf of my client. I had survived summary judgment, a feat I erroneously regarded as easy and simple at the time. I mentioned the matter at a picnic, in front of the head of the antitrust department, and bragged about what-all I had done, including both ingenuity and practical achievement. He was a very officious-looking fellow and wreaked of rigidity. Most everyone regarded him as a semi-“prick,” and internally weak. I was insulted, and ignored his demand. I heard from his “Whatever” a month or so later, and it was again demanded that my case be deposited with Master Antitrust. I indicated sneeringly that I had settled the case for $1M, and implicitly suggested that this fellow should go and “take care of himself” in his office after he had locked the door.
The mistake here, even if there appears to be only one, was the reality of actually two. First, I was never invited to serve on a case in that department; I would have liked to have done that. Second, my enjoyment of my action and my responsive statement caused me so much pleasure and so little pain, that it reinforces a kind of hubris that lasted in my life far too long. I am not even sure it has been vanquished to this day.
Now, back to the general point. Mistakes can be very instructive. They are highly educational, and when taken by it self, learning is virtually always a very good think For one thing, it always if understood leads to improved actions. The trouble is, the mistakes hurt yourself or others (like clients), they are not so good. Hence, the virtues of errors, contemplated in the abstract, is a complex matter. There are many shades of gray, and thinking about this matter deeply is not so easy. In practice, an error which leads to or constitutes education, and is even character building, but injures a client is probably not be in one of the gray zone. The deeper and/or greater the injury, the darker the gray gets. And, if it is serous enough, the error may be jet black, even if it is educational.
Deep but balanced pragmatism is the philosophical foundation for most of human life. Rigor is not all some crack it up to be. As a pragmatic matter, however, the use of balanced pragmatism may have to be concealed behind the appearance of rigor.
Originally posted on 01/08/2014 @ 11:40 pm