Pat Lamb, who I mentioned in my last post, recently wrote a piece that while excellent was not exactly groundbreaking. Or so I thought. Pat’s premise was that everyone makes mistakes. Everyone includes lawyers. Mistakes happen. Mistakes are bad. We should therefore learn from mistakes to avoid repeating mistakes. Towards this end, Pat explained the usefulness of After Action Assessments and root-cause analysis. Great stuff. But, for me, it was akin to a health expert recommending that couch potatoes exercise, consume less junk food, and eat vegetables. Perfectly sound, uncontroversial, well-worn advice that is too often ignored and should therefore be repeated as often as possible.

As usual, I was so very wrong. The ABA Journal comments section exploded with adverse wisdom like:

Yes, dear Patrick J. Lamb. Let us embrace our mistakes, such as missing statutes of limitations and whatnot. Don’t our mistakes just empower us? Gag. How about doing all you can NOT to make a mistake and then doing all you can to rectify it and if you can’t do all you can to make amends? Hmm?

associate said:
Mistakes are simply unacceptable.  That’s the reality of our profession, especially since the law schools and ABA have flooded it with excess attorneys.

These perspectives struck me as so silly that I added satirical support to their keen ‘insight’:

Casey Flaherty said:
Mr. Lamb:

Christie and associate make some compeling points, which is unsurprising given that they are menbers of our hollowed profession. Look, I know that you reference Einstein, Drucker, the Navy Seals, Kimye, Drake, and Meek Mill. What do they all have in common other the fact that they make mistakes? None of them are lawyers.

As Justice Mustang wrote for the Untied States Supreme Court in in the semenal 2010 case of Clouseau v. Malapprop, “whatever a lawyer is doing is, ipso facto, correct because a lawyer doing it. Lawyers are, by definition, incrapable of error.” As you know, the Court held that having a J.D. (which stands for Jactanter Dealbator, or “the one who is (always) right”) was an absolute defense to a claim of malpractice. In her concurrent, Justice Abercrombie even traced the origins of the lawyer infallibility doctrine from The Federalist Papers to the Papal bull Unam Sanctam. The impact of Clouseau on the insurance industry was the primary cause of the Great Recession. And 43 of the 46 state bar associations subsequently suspended their grievance process because no one could maintain a good faith claim that a lawyer had been wrong in thought or deed.

Not only do I think that we should continue to deny that lawyers make miss takes (thereby guaranteeing that mistakes will never happen), I believe that we should also deny that any lawyer has ever written an article suggesting that might lawyer mistake make (guaranteeing that your article was never written). How’s that for an After Action Plan?

My mockery did absolutely nothing to stem the tide of abuse directed toward Pat. Pat, of course, does not need my help. Along with Jeff Carr, he is building an entire business around the idea that identifying and addressing the root causes of mistakes is key to not repeating them. But the incident left me sad for my profession.

The pursuit of perfection begins with admission of imperfection. How do we get better at what we do when reflecting on mistakes is a thought crime? when it is a sin to admit that what we do can be improved? when formalizing a mistake-reduction process is the height of unprofessionalism?

Michael Jordan believes Michael Jordan is the best basketball player of all time, just ask Michael Jordan (see his Hall of Fame induction speech). Yet, Michael Jordan is, arguably, right. Michael Jordan may have been the best basketball player in history, in part, because he understood that being the best required being fanatical about eradicating his weaknesses (which, of course, he had to admit in order to address). Jordan even made a commercial entitled Failure.

You can be the best at what you do without being perfect. You can stand in high regard in your profession (and your own mind) without pretending you are infallible. Indeed, framed properly, your ruthless pursuit of better can be a signal of your stature, not a threat to it.

As Seth Godin says, “Yo Yo Ma isn’t perfect… he’s just better than everyone else.” Like Jordan, Ma is also, arguably, the best at what he does. He has pretty much always been great. He was a child prodigy. He chose the cello at the age of four. By seven, he was playing for American presidents. Yet, Ma still practices 2,000 hours per year–a solid year of lawyer performance. Yo-Yo Ma is Yo-Yo Ma precisely because he is the kind of person that will practice 2,000 hours per year even after he is established as the best in the world.

In the book, Talent is Overrated: What Really Separates World-Class Performance from Everybody Else, Geoff Colvin explains that the best of the best take a different approach to self-analysis and error (h/t Farnam Street):

Excellent performers judge themselves differently from the way other people do. They’re more specific, just as they are when they set goals and strategies. Average performers are content to tell themselves that they did great or poorly or okay. The best performers judge themselves against a standard that’s relevant for what they’re trying to achieve. Sometimes they compare their performance with their own personal best; sometimes they compare with the performance of competitors they’re facing or expect to face; sometimes they compare with the best known performance by anyone in the field….

….If you were pushing yourself appropriately and have evaluated yourself rigorously, then you will have identified errors that you made. A critical part of self-evaluation is deciding what caused those errors. Average performers believe their errors were caused by factors outside their control: My opponent got lucky; the task was too hard; I just don’t have the natural ability for this. Top performers, by contrast, believe they are responsible for their errors. 

The kind of people who proclaim that mistakes are unacceptable even when they recognize mistakes are unavoidable do not really believe they are perfect. Rather, they believe that people like them are not supposed to admit imperfection. This remains one of the biggest impediments to change in our industry. As I try to convince law firms and law departments to engage in structured dialogue, I constantly run into people on both sides of the relationship who are threatened by the idea of an open discussion about doing better. If I concede that we might do better then I am confessing that I’ve been wrongWe have to get beyond the idea that improvement is an indictment of the past. Our job is not to be perfect. Our job is to do the best we can until we can do better, and then do better.

But better means different. And different requires experimentation. Unfortunately, this runs counter to the lawyer psychological profile, as explained in this stellar post on Adam Smith, Esq.

It’s a truth universally acknowledged that Law Land resists change like the plague. And, yes, this is pretty widely attributed to the phenom known as the “lawyer personality,” characterized by an almost pathological aversion to risk. But let’s unpack this a bit to better understand why lawyers, in particular are so risk averse.

Lawyer-psychologist Dr. Larry Richard, the leading expert on the psychology of lawyer behavior has quantitatively established that a preponderance of lawyers share (among others) two personality traits that in combination scotch the very notion of experimentation. The first is “Resilience.”  Somewhat surprisingly, lawyers score really low on “Resilience,” essentially the ability to recover quickly after a setback. On this trait, Lawyers score only 30%, which would be enough on its own to seriously dampen any appetite for experimentation.

But wait – there’s more. What won’t surprise anyone is that lawyers score really high on “Skepticism.”  Dr. Richard’s work reveals that lawyers score 93% on this attribute (only 5% of the population is as skeptical). Lawyers can (and do!) poke holes in anything.  So, any proposed change will be scrutinized and picked over to such a degree as to discourage all but the most stout-hearted.

These two characteristics, lack of resilience coupled with a high degree of skepticism are a double whammy to the notion of experimentation. Failure is perceived anything but “noble” in Law Land.

In short, we have the wrong mindset. We are inclined to hide deficiencies instead of overcoming them. That’s the easy way out. The problem with the easy way is that eventually it makes everything so damn hard.


Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.

Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).  

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Photo of Casey Flaherty Casey Flaherty

I am the co-founder and chief strategy officer at LexFusion, the go-to-market collective of legal innovation companies (tech and services). I am also the co-founder of Procertas (competency-based tech training). I was a BigLaw litigator and then in-house counsel who went into…

I am the co-founder and chief strategy officer at LexFusion, the go-to-market collective of legal innovation companies (tech and services). I am also the co-founder of Procertas (competency-based tech training). I was a BigLaw litigator and then in-house counsel who went into legal operations consulting before one of my BigLaw consulting clients hired me full-time to help them build the biggest and best legal project management team in world. A Lean Six Sigma black belt, I tend to think in terms of scalable systems that properly leverage people through process and technology. I am deeply experienced in legal operations, legal tech, strategic sourcing, process improvement, systems re-engineering, and value storytelling, in addition to spending over a decade in the legal trenches as a practitioner. I’ve long served  as a mesh point between law departments and law firms to promote structured dialogue that fosters deep supplier relationships (read about that here). I am a regular writer and speaker on practical legal innovation.