Article Preview: A Behavioral Approach to Lawyer Mistake and Apology

Why do new attorneys make mistakes? How can new attorneys remedy these mistakes and avoid them in the future? How can law firms provide the guidance necessary to assist new attorneys in their transition to the profession? In her article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean Catherine Gage O’Grady utilizes testimonials from practicing attorneys, principles from behavioral psychology, and examples from the medical profession to answer those questions; and she provides a detailed behavioral analysis of lawyering and legal ethical decision-making.

Associate Dean O’Grady begins her article by reviewing several concepts, such as overconfidence bias and cognitive dissonance, that are fundamental to an understanding of behavioral psychology. She argues that these concepts lead to mistakes in the law firm setting, and she provides several examples of how the concepts may affect new attorneys. For example, Associate Dean O’Grady states that confirmation bias—“the tendency to focus on information that confirms our decisions and to undervalue information that cuts the other way”—may lead a new attorney to make significant mistakes while performing legal research. This is because a new attorney will focus his or her research efforts to confirm legal conclusions already reached, even if those conclusions were wrong from the beginning. She also argues that cognitive dissonance—“a state of tension that occurs when a person realizes she is holding two psychologically inconsistent idea or beliefs”—can also result in lawyering mistakes. Associate Dean O’Grady poses the example that when a new attorney, who thinks of him- or herself as timely and organized, is suddenly faced with a new failure to stay organized or respond to client emails, he or she will experience cognitive dissonance and will likely make excuses for these mistakes. The new attorney, therefore, will be unable to acknowledge his or her mistakes.

While the mistakes made by new attorneys are usually beyond their cognition, Associate Dean O’Grady’s article argues that there are several ways attorneys and law firms may respond to and remedy their mistakes. Most importantly, Associate Dean O’Grady argues, and the American Bar Association Model Rules of Professional Conduct require, that the attorney must acknowledge the mistake, even if it will lead to a stern conversation with the firm’s partners or result in a damaged reputation. She also states that an attorney should strive to be a reflective practitioner, thereby allowing the attorney “to accept both fixed and growth mindset tendencies and embark upon ‘the journey to a growth mindset.’”

Further, Associate Dean O’Grady proposes that law firms should encourage their attorneys to acknowledge their mistakes. By doing so, firms are able to detect lawyering mistakes, and potential malpractice claims, more effectively. She also argues that law firms create an atmosphere of mistake acknowledgement by adopting a “quality-control” management model, where the focus is on the firm’s improvement and client services. Finally, Associate Dean O’Grady, taking the lead from the medical profession, states that law firms should be open to reporting attorney mistake and apologizing to their clients. She argues that apologizing to clients provides important psychological and practical benefits, including the preservation of the attorney-client relationship and decreased litigation costs.

Associate Dean O’Grady’s Article will appear in Volume 51, Issue 1 of the New England Law Review.

Contributing Editor: Zachary J. Gregoricus

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