Revolutionizing the response to failure: a post-error action plan for law firms

Have you ever been involved in the blame game? When something goes tragically wrong on a file and everyone is so scared of the fallout that they start finger pointing?

Sarah Adler

Have you ever been involved in the blame game? When something goes tragically wrong on a file and everyone is so scared of the fallout that they start finger pointing? Fight or flight mechanisms kick in and the brain floods with cortisol; no one is thinking clearly anymore. Worse, the person who feels responsible tries to fix it alone, making more mistakes.

In the risk-averse industry of law, this situation is common. Conversations focus on problem-solving before the real issues are identified. Reflection rarely happens. A direct line between the error and the one person responsible is sought without understanding the bigger picture. Often, the one held responsible, perhaps the catalyst for the error, had little control over the collective events that led to the error. Just as no one can accomplish success alone, rarely do problems occur because of a single person’s actions.

This article will look at two steps to help avoid the blame game and turn errors into productive learning experiences: how to deal with the emotional and biomechanical aspects of the crisis and how to productively reflect on the collective experience.

The initial response

As realization dawns that there is a problem, you need to stop and breathe. Take five deep breaths and make sure your brain is well oxygenated. This will reduce initial anxiety. Next, tell someone more senior what happened so that the burden is shared. If you do not report to anyone, you might want to speak with another practice partner or trusted colleague being sure to maintain client confidentiality.

This is often the hardest part, making yourself vulnerable and sharing the burden. Sometimes, the problem is not as bad as initially thought, but unless you talk it through with someone, it’s hard to see that. 

Before further action is taken, you need the ability to think clearly and that cannot happen until the fight or flight hormones clear from your system. Physical activity and time are the only things that will do this. Since time is often of the essence, the best thing to do is to go for a brisk walk. After that, you are in a better place to reconnect with the person you shared the problem with to identify key concerns and make a plan of action.

Dealing with the client

It is often better for the client not to deal with the lawyer responsible for the error but with a more senior lawyer, even if the lawyer responsible for the error does all the leg work in the background. This gives the client confidence that the matter is being taken seriously. It also creates space for the client to vent frustration without creating an accusation and defence dynamic. The alternate lawyer can more easily be empathetic to the client’s situation without admitting any fault. It also reduces the emotional burden for the initial lawyer.

I once had a case that went completely off the rails when an early assumption proved irreparable. It was disastrous at first, but because we were able to keep thinking, remain calm and walk the client through the fallout, in the end, the client thanked us for our support.

Clients don’t really judge us for the mistakes we make but for how we deal with them afterwards. We all makes mistakes, we all fail at some point, we are all human. What separates the truly successful is how they resolve problems and learn from mistakes.

Post-error analysis

So, how do we learn from our mistakes? We reflect on them and take time to understand how to prevent them. This is not as easy as it sounds. It requires honesty, humility, accountability and the understanding that failure is an opportunity for growth. It requires lawyers and leadership teams to look toward the future and not lay blame for the past. 

After the crisis passes, it is a good idea to engage in an after-action review. After-action reviews were developed by the U.S. military in order to improve the outcomes of military actions. These reviews don’t need to be lengthy, but they do need to be structured. 

The review consists of four questions:

1) What did we expect to happen?

2) What actually happened?

3) What created the differences between the two? and

4) How could the outcome have been improved? 

 

Everyone is usually on the same page in step one. It is based on established objectives and expectations. 

Step two can be personally challenging and emotionally charged. To determine what happened will require those involved to speak freely and openly about their role within the event without fear of judgment or retribution. Only true honesty, about ourselves and others, will allow this review to proceed successfully. 

Most of the review will be spent on steps three and four. These are the steps at which we lawyers should excel. We do this for our clients all the time. Step three is issue spotting and step four is problem-solving. This will require group participation and all participants should be treated equally. The person leading or mediating the review should operate outside of hierarchy and power dynamics.

Completing the review as a regular course of business will create accountability, build trust, provide closure and, most importantly, build the practice in a positive and sustainable direction. 

Implementing the analysis

The information gleaned from the AAR process is only as good as the firm’s ability to incorporate it into their business planning and operations. The information gained from the review should be documented and kept in the firm knowledge management repository for future reference during quarterly leadership meetings or other firm planning and development discussions. Results can then be considered when making decisions regarding personnel, structure and the future of the firm.  

Taking the above actions will likely require a cultural shift that will not be easy. Those who are brave enough to face the growing pains will benefit from a healthier, happier and more productive work environment.

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