O'Grady: A Behavioral Approach To Lawyer Mistake and Apology

SYMPOSIUM
A Behavioral Approach to Lawyer

Mistake and Apology
CATHERINE GAGE OGRADY*
I should have known betterI dont like to make any mistakes at all; but in this
case, my clients freedom was on the line. I felt terrible.
* New lawyer, describing a mistake made in second year of practice
INTRODUCTION
W
e all make mistakesit is only human. Lawyers are only human;
thus, it follows that lawyerseven smart, well-educated,
conscientious lawyerswill occasionally make mistakes in their
professional work. These are universally accepted axiomsin theory. In
specific application, however, when we face circumstances that should cause
us to ask whether we have made a mistakethat is an entirely different
story. This Article explores the behavioral principles grounded in social
psychology that prevent us from recognizing that we have made a mistake
and applies those principles to lawyering and the practice of law. A
behavioral analysis suggests that the toughest acknowledgement of
mistake is the one we make to ourselveswe fail even to recognize that we
made a mistake. Once a mistake is fully recognized, acknowledgement of it
* Professor of Law, James E. Rogers College of Law, University of Arizona. I thank Paul
Bennett, Tigran W. Eldred, Toni M. Massaro, Stanley S. Reynolds, Jennifer K. Robbennolt, Ted
Schneyer, Keith Swisher, and Paul Tremblay for helpful suggestions. In addition, I thank my
colleagues who participated in a workshop on this paper at the James E. Rogers College of
Law at the University of Arizona, panelists and students who participated in New England Law
Reviews Fall 2016 symposium presentation, Mark I. Harrison of the Osborn, Maledon firm,
and William H. Prout and other attorneys at the Wiggin and Dana firms New Haven office. I
am grateful to Jacqueline Leahy and Renee Gantert for excellent research and interviewing
assistance. Finally, many thanks to the attorneys who talked with us about the mistakes they
have made in their practice of law.
7
8 New England Law Review Vol. 51|1
to others becomes a critical consideration.1 For the lawyer, especially the

new lawyer, mistake acknowledgment often means a difficult discussion
with senior lawyers and even clients. After considering the behavioral
underpinnings to mistake recognition, this Article explores mistake
acknowledgement and considers a role for apology to clients for lawyering
mistakes. Although lawyers increasingly advise their clients to apologize to
opposing parties in a dispute, often to facilitate settlement, they generally
do not consider the role of apology as it applies to them and to their
lawyering work. This Article opens up that topic, primarily by exploring
the increasing use of apology in the medical field and suggesting that a
carefully limited role for apology may exist in the professional practice of
law to promote a work environment that values transparency and eases the
psychological burdens that accompany mistake recognition and
acknowledgement.
In general, a behavioral analysis of lawyering and of legal ethical
decision-making is receiving some well-deserved, if belated, scholarly
consideration.2 Behavioral legal ethics, relying on empirical research from
behavioral science, posits that psychological factors, which often occur
1 The passive voice, used here intentionally, has enjoyed a starring role in mistake
acknowledgement, where public acknowledgements for serious wrongdoings often go only as

far as noting that mistakes were made. See CAROL TAVRIS & ELLIOT ARONSON, MISTAKES
WERE MADE (BUT NOT BY ME) 12 (2007) (Mistakes were quite possibly made by the
administrations in which I served.) (quoting Henry Kissinger); id. (If, in hindsight, we also
discover that mistakes may have been made . . . I am deeply sorry.) (quoting Cardinal
Edward Egan of New York when referring to the bishops who improperly handled child
molesters in the clergy).
2 See Jennifer K. Robbennolt & Jean R. Sternlight, Behavioral Legal Ethics, 45 ARIZ. ST. L.J.
1107 (2013) (providing a comprehensive survey of behavioral legal ethics). See generally Tigran
W. Eldred, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of
Professional Responsibility, 2016 MICH. ST. L. REV. 757 passim (2016); Catherine Gage OGrady,
Behavioral Legal Ethics, Decision Making, and the New Attorneys Unique Professional Perspective,
15 NEV. L.J. 671 passim (2015); Andrew W. Perlman, A Behavioral Theory of Legal Ethics, 90 IND.
L.J. 1639 passim (2015). Some pioneering legal scholars have taken a behavioral approach to
legal topics long before this current wave, but most recognize that business has been well
ahead of law in applying a behavioral approach, both to decision making in general and to
ethical decisions made in a business context. See Donald C. Langevoort, Behavioral Theories of
Judgment and Decision Making in Legal Scholarship: A Literature Review, 51 VAND. L. REV. 1499
passim (1998) (acknowledging the sense of newness to the behavioral research in legal
scholarship, particularly when compared to business, but noting that some behavioral work
has made important contributions on a range of legal topics, and discussing the behavioral
research in law through early 1998); see also David De Cremer & Ann E. Tenbrunsel, On
Understanding the Need for a Behavioral Business Ethics Approach, in BEHAVIORAL BUSINESS
ETHICS: SHAPING AN EMERGING FIELD 3, 8 (David De Cremer & Ann E. Tenbrunsel eds., 2012);
Linda K. Trevino et al., Behavioral Ethics in Organizations: A Review, 32 J. MGMT. 951, 952 (2006).
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2017 A Behavioral Approach to Lawyer Mistake and Apology 9
outside the conscious awareness of a legal decision maker,3 may produce

decision-making errors that may ultimately result in unethical conduct.4
Because those influencescognitive biases, heuristics, and situational
factorsoften operate unconsciously, a disconnect or gap frequently
exists between how people think they would behave if given a chance to
predict their responses to a given set of circumstances, and how they
actually do behave when confronted with that situation.5 When combined
with an analysis of judgment and decision-making, a behavioral legal
ethics analysis shines some light on the pivotal points in the lawyers
ethical decision-making process that may be particularly vulnerable to the
impact of unconscious cognitive bias or the inappropriate use of heuristics.6
But not every decision-making or process error results in a mistake
or an unfortunate outcome.7 Framing, for example, describes how
decision makers think about and describe a problem before they begin to
solve it. Cognitive biases such as frame blindness may cause them to
frame the problem too narrowly or embrace the first frame that occurred to
them without considering alternatives.8 Ultimately, the problem to be
3 Donald Langevoort recently noted that a major question dominating the study of
behavioral dynamics that is not yet fully understood is [h]ow much of this is
unconscious? Donald C. Langevoort, Behavioral Ethics, Behavioral Compliance, in RESEARCH
HANDBOOK ON CORPORATE CRIME AND FINANCIAL MISDEALING (Jennifer Arlen ed.,
forthcoming 2017).
4 Eldred, supra note 2, at 766.
5 See MAX H. BAZERMAN & ANN E. TENBRUNSEL, BLIND SPOTS: WHY WE FAIL TO DO WHATS
RIGHT AND WHAT TO DO ABOUT IT 12 (2011) (recognizing the gap between intended and
actual behavior). People, in other words, are quick to understand how psychological factors
impact the decisions and behaviors of others, but they do not believe that they would be
susceptible to such influences. See Emily Pronin et al., The Bias Blind Spot: Perceptions of Bias in
Self Versus Others, 28 PERSONALITY & SOC. PSYCHOL. BULL. 369, 369 (2002) (We propose that
people recognize the existence, and the impact of the biases that social and cognitive
psychologists have described over the past few decades. What they lack recognition of . . . is
the role that those same biases play in governing their own judgments and inferences.).
6 E.g., OGrady, supra note 2, at 672 (analyzing behavioral legal ethics principles in
combination with the study of judgment and decision-making with an eye toward
understanding a new lawyers potential ethical decision-making); Joseph W. Rand,
Understanding Why Good Lawyers Go Bad: Using Case Studies in Teaching Cognitive Bias in Legal
Decision-Making, 9 CLINICAL L. REV. 731, 73537 (2003) (describing a judgment and decision-
making class derived from Paul Breast and Linda Kriegers model for educating students
about their own cognitive limitations and teaching them how to examine the decision-
making process systematically, including deciding how to decide).
7 Similarly, of course, not every unfortunate legal outcome is a mistake or the result of a
decision-making process error. A lawyer, for example, may litigate a case beautifully, without
error, and still lose because a judge or jury simply disagrees with the lawyers valid
arguments or interpretations of fact or law.
8 See Rand, supra note 6, at 73940.
solved may be improperly framed, but that does not necessarily mean that
the solution is poor.9 Focusing on mistake, on the other hand, overlaps
with analyzing the decision-making process, but it takes a hindsight view
rather than a process viewa mistake has been made, and yet we fail to
see it. A behavioral lens helps explain why our mistakes are often outside
of our awareness.
In addition, focusing on mistake is useful because it specifically targets
the behavioral principles that law firm leaders need to understand if they
hope to create work environments that promote early recognition and
acceptance of mistakes. Creating such work environments serves to contain
unfortunate situations, avoid one mistake building incrementally on
another, discourage denial and cover-up, and facilitate learning for
professional growth.10 Moreover, a mistake focus may usefully enhance
learning about the behavioral principles that can both contribute to the
mistake and hinder its recognition.11 In psychology, enlightenment effect
studies suggest difficulties in teaching people about behavioral ethics
dynamics ahead of time in ways that impact their decisions when they
actually must make a decision.12 Understanding behavioral insights and
9 See id. at 740 (noting that even after ineffective framing, a decision maker may make a
happy choice). Similarly, of course, heuristics and even cognitive biases can be importantly
efficient in the decision-making process, and might support positive behaviors. See, e.g., Dolly
Chugh et al., Bounded Ethicality as a Psychological Barrier to Recognizing Conflicts of Interest, in
CONFLICTS OF INTEREST 74, 78 (Don A. Moore et al. eds., 2005) (We begin with the well-
established knowledge that boundedness and heuristics offer computational speed, critical to
the survival of human beings with less than infinite time for decision-making.); Gerd
Gigerenzer & Wolfgang Gaissmaier, Abstract, Heuristic Decision Making, 62 ANN. REV.
PSYCHOL. 451, 451 (2011) (arguing that research testing heuristic models in business, health
care, and legal institutions indicates that individuals and organizations often rely on simple
heuristics in an adaptive way, and in some cases, heuristics can lead to more accurate
judgments than decisions made using all information available). With regard to motivating
positive behaviors, the overconfidence bias discussed in this Article, for example, may prevent
a young attorney from recognizing mistake, but it simultaneously may also provide them
with the courage and self-confidence to litigate a case or present an oral argument before a
judge.
10 A focus on mistake has garnered some recent attention in popular literature from
behavioral scholars who generally advocate embracing mistakes as learning opportunities.

See, e.g., KATHRYN SCHULZ, BEING WRONG: ADVENTURES IN THE MARGIN OF ERROR 12 (2010);
TAVRIS & ARONSON, supra note 1, at 235.
11 The cognitive biases and heuristics discussed in this Article may play a dual role
contributing to an outcome by impacting decision-making and solidifying the outcome by

making it difficult to recognize it as a mistake. See infra Part II.
12 The enlightenment effect, constructed by Kenneth J. Gergen, suggests that knowledge
about psychological principles can liberate the enlightened from behavioral implications;
thus, those who are educated or enlightened will view their behavior as an instance of the
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instituting reforms based on such insights is likely clearer from a starting

point of a recognized and concrete mistake, as opposed to a more
ambiguous decision-making error.
This Article begins, in Section I, by exploring behavioral barriers to
mistake recognition. Section II then discusses behavioral constraints on
mistake acknowledgment to others. New lawyers are likely to make more
mistakes than senior lawyers, because they have more to learn about the
practice of law, and a behavioral analysis suggests that new attorneys will
be least likely to recognize certain mistakes. Thus, in this Article, I will
continue a theme I pursued in earlier work, staying attuned to the unique
challenges faced by the new attorney who has made a mistake and must
confront both the realization of the mistake and the consequences of
acknowledging the mistake.13 Finally, Section III offers some individual
and systemic strategies for addressing barriers to mistake recognition and
acknowledgment. Leaders of organizations are increasingly recognizing
the value of applying behavioral science insights to improve the
effectiveness of their systems and operationseven the President of the
United States recently called for the application of behavioral insights to
executive department and agency policies, programs, and operations.14 In
underlying psychological controls, and will resist, ignore, or overcome the pressures such
controls otherwise would put on their behavior. See Kenneth J. Gergen, Social Psychology as
History, 26 J. PERSONALITY & SOC. PSYCHOL. 309, 314 (1973). Unfortunately, no study actually
shows that the enlightenment effect works, and some studies have demonstrated that
educating people about psychological influences such as cognitive biases does not reduce
their susceptibility to the bias. See Richard D. Katzev & Anya K. Averill, Abstract, Knowledge of
the Bystander Problem and Its Impact on Subsequent Helping Behavior, 123 J. SOC. PSYCHOL. 223,
223 (1984); Rudiger F. Phol & Wolfgang Hell, Abstract, No Reduction in Hindsight Bias after
Complete Information and Repeated Testing, 67 ORGANIZATIONAL BEHAV. & HUM. DECISION
PROCESSES 49, 49 (1996).
13 See generally OGrady, supra note 2 (analyzing the unique impact of behavioral legal
ethics for new attorneys); Catherine Gage OGrady, Wrongful Obedience and the Professional
Practice of Law, 19 J. L. BUS. & ETHICS 9 passim (2013) [hereinafter OGrady, Wrongful Obedience]
(applying wrongful obedience theories to the practice of law, especially for new lawyers);
Catherine Gage OGrady, Cognitive Optimism and Professional Pessimism in the Large-Firm
Practice of Law: The Optimistic Associate, 30 LAW & PSYCHOL. REV. 23 passim (2006) (analyzing
cognitive optimism and pessimism principles in the law firm environment as they pertain to
new associates); Catherine Gage OGrady, Preparing Students for the Profession: Clinical
Education, Collaborative Pedagogy, and the Realities of Practice for the New Lawyer, 4 CLINICAL L.
REV. 485 passim (1998) (contrasting clinical legal educations typical supervision models with
laws professional work teams from the perspective of the new lawyer and offering
suggestions to better prepare new lawyers for professional and effective collaborations in the
practice of law).
14 See Exec. Order No. 13,707, 80 Fed. Reg. 56, 365 (Sept. 15, 2015). Entitled Using
Behavioral Science Insights to Better Serve the American People, President Obamas
executive order encourages the federal government to use behavioral science insights to
this Article, I offer some observations, informed by behavioral

considerations, for law firms to consider that will facilitate mistake
recognition and ease attorney acknowledgment of mistake. It is within this
spirit that I consider a role for apology to clients to reduce the
psychological costs associated with mistake by creating a work
environment where lawyers are not ashamed of and do not hide from their
mistakes, but instead view them as opportunities to build trust with clients
and improve performance.
In the practice of law, all sorts of lawyering mistakes are possiblea
lawyers mistake might be a minor slip-up or it might be a serious ethical
mistake. For the purposes of this Article, I offer a broad and pragmatic
definition of lawyering mistake as something a lawyer unintentionally
does or does not do, that results in an actual or arguable ethical infraction,
or that results in an actual or possible poor client outcome. Mistake is not
intentionalthe lawyers decision to act or not may be intentional, but the
poor outcome is unintentional.15 Thus, by mistake, I mean an act or
omission that does or could unintentionally result in an unfavorable
outcome or unethical conduct. A mistake could be based on a lack of
knowledgeas when a new attorney does not know about a rule or
protocol and violates itor it could be based on an error of judgmentas
when an attorney selects a counterproductive strategy among several
options to achieve a goal.16 This definition of mistake covers minor
improve the effectiveness and efficiency of government. See id. In the law firm environment,
scholars have used a behavioral approach to suggest cultural or systemic interventions to
facilitate good, ethical decision-making. See JENNIFER K. ROBBENNOLT & JEAN R. STERNLIGHT,
PSYCHOLOGY FOR LAWYERS: UNDERSTANDING THE HUMAN FACTORS IN NEGOTIATION,
LITIGATION, AND DECISION MAKING 41115 (2012); Robbennolt & Sternlight, supra note 2, at
1107. See generally Milton C. Regan, Jr., Moral Intuitions and Organizational Culture, 51 ST. LOUIS
U. L.J. 941 passim (2007).
15 See In re Van Dox, 152 P.3d 1183, 1188 (Ariz. 2007) (adopting the ABA definition of
knowledge).
16 See generally JAMES REASON, HUMAN ERROR 914 (1990) (offering extensive working
definitions of mistake, categorizing error types under three broad headingsplanning,

storage, and executionand recognizing a further subdivision of mistakes into those based on
failures of expertise and those based on a lack of expertise). In the medical field, medical error
has been defined as an unintended act (either of omission or commission) or one that does
not achieve its intended outcome, the failure of a planned action to be completed as intended
(an error of execution), the use of a wrong plan to achieve an aim (an error of planning), or a
deviation from the process of care that may or may not cause harm to the patient. Martin A.
Makary & Michael Daniel, Medical ErrorThe Third Leading Cause of Death in the US, BMJ (May
3, 2016), http://www.bmj.com/content/353/bmj.i2139 [https://perma.cc/RT3M-YVCT]. If a
decision maker selects a strategy that seems reasonable at the timeas in making a valid
judgment callbut it ultimately produces an unfavorable outcome, I would count that as a
mistake (albeit perhaps a minor or understandable one) if, in hindsight, it appears that the
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mistakes that lend themselves to early detection and repair, significant

mistakes that cannot be fixed, and mistakes with delayed or uncertain
consequences. For example, consider the following testimonials from
lawyers about mistakes they have made in their practice:17
In the process of filing for asylum, I was supposed to send

some documents to an agency to get the biometric process
started. I forgot to do it. By the time I realized my mistake,
it was much too late to get it done in time for the asylum
hearing.
*Immigration defense attorney with eleven years
practice experience
As a young prosecutor, I was prosecuting a man for

molesting four neighborhood girls. One of the victims told
me that the defendant would let her smoke pot before he
molested her. It barely occurred to me that I should
disclose this to the defense. At trial, the witness testified
that she was having a hard time remembering events. I
asked her if her memory loss was due to the fact that she
suffered a trauma, and she responded that it was because
the defendant had given her marijuana and she had
smoked it. The judge granted a mistrial.
*Senior criminal defense attorney describing error he
made as a new prosecutor
I sent a response to a question about a contract to the

wrong client. I realized my mistake almost as soon as I
pressed the send button.
*In-house corporate counsel with eight years practice
experience
Recently, a young lawyer at our firm counted a

shareholder vote incorrectly and recorded the vote wrong.
attorney should have seen that another strategy choice would have been more likely to be
successful. This broad definition attempts to remove negative or shameful connotations
associated with a mistake and allows mistakes to be accepted and used as learning
opportunities.
17 Two research assistants and I interviewed twenty-four lawyers of all practice
backgrounds and experience levels to talk about lawyering mistakes they have made in their
practice and how they dealt with the mistake. This Article will refer to these attorney
testimonials throughout.
It didnt affect the outcome, but it was a contentious

situation. The error undermined confidence and gave
critics something to criticize about the process.
*Transactional attorney describing a mistake made by
a new lawyer in his office
As illustrated by these examples, lawyer mistakes cover a broad swath.

Some of the mistakes mentioned above are minorif recognized and
acknowledged, they can be remedied. However, if a minor mistake goes
unrecognized or if the attorney recognizes the mistake but fails to
acknowledge it or covers it up, it can turn into a significant problem. Other
mistakes may have ethical ramifications. But of course, not every mistake
has ethical implications, potentially subjecting the attorney to sanctions.18
Nor could every mistake lead to a malpractice action against the lawyer
to determine that a lawyer made a mistake is not to say that the client has
an actionable malpractice claim.19 Moreover, while this Article advocates
for more thoughtful mistake acknowledgement, not every lawyering
mistake is appropriate for client discussion. In short, the impact of
behavioral principles on mistake recognition and acknowledgment will
vary depending on the kind of mistake made. Lawyering mistakes are,
necessarily, fact based; each one needs to be evaluated to determine the
barriers to recognition and acknowledgement, and to consider the proper
response. But first, the mistake must be recognized.
I. Mistake Recognition: A Behavioral Analysis
I was shocked to realize I had made the same mistake

twice, in the same case. In hindsight, I just didnt pick up
on it the first time.
*New attorney reflecting on a failure-to-object mistake
made twice during same client representation
A number of cognitive heuristics, situational dynamics, and behavioral

principles affect our ability to see our mistakes. The biases and heuristics
18 As one court noted, an honest mistake does not ordinarily afford a basis for a
disciplinary action. If it did, the practice of law would indeed be a hazardous profession.
State ex rel. Nebraska State Bar Assn v. Pinkett, 60 N.W.2d 641, 643 (Neb. 1953).
19 In many states, a lawyer has an express duty to tell the client about any mistake that
potentially constitutes malpractice. See Benjamin P. Cooper, The Lawyers Duty to Inform His
Client of His Own Malpractice, 61 BAYLOR L. REV. 174, 193 (2009) (providing that, under the
Restatement (Third) of the Law Governing Lawyers, a lawyer has an express duty to tell the
client about any mistake that potentially constitutes malpractice); see also infra notes 7477 and
accompanying text (discussing the attorneys self-reporting duty).
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discussed in this section may play a dual role in any error analysisa
heuristic, for example, may impact decision-making during information
processing, and it may additionally serve to solidify a decision once the
mistake is made, thus impairing our ability to realize that we have erred. In
this section, I concentrate on those biases and heuristics that directly
impact mistake recognition in a manner that goes beyond their possible
existence in the decision-making process. They may have played a role in
the decision-making process (or not), but they also have the potential to
play a significant separate or dual role in impacting our ability actually to
see the mistake in hindsight.20 As discussed below, sometimes lack of skill
or knowledge operates to prevent mistake recognition, but not always.
Mistake reflections, like the testimonials above that include thoughts like I
should have known better or It barely occurred to me that I should have
disclosed this to the defense, suggest that the mistake was not lying
dormant due to lack of skill or knowledge; rather, something else was
preventing the lawyer in question from bringing the mistake to mind. This
section discusses some of the key barriers to mistake recognition in the
practice of law.
A. Avoiding the Dread
We humans love to be rightit is ego-gratifying, imperative for

survival, and one of lifes cheapest and keenest satisfactions.21 Self-
proclaimed wrongologist Kathryn Schulz, examining what it feels like to
be wrong, posits that being wrong actually feels like being right.22
What feels awful (or traumatic or deflating or embarrassing) is the
realization that we were wrongthat we have made a mistake. At a most
basic level, our unconscious avoidance of mistake realization reflects our
unwillingness to confront the sense of dread on realizing that one has
20 Because cognitive biases and heuristics operate on decision-making below the threshold
of consciousness, we have difficulty reflecting on any of them or cognitively stepping away
from their impact. For example, if the framing bias, discussed earlier, operates in a way that
produces an unfavorable result because of an improper frame, we will have difficulty
recognizing poor framing as the problem and seeking more information to broaden the
frame and correct the mistaken outcome. To that extent, any bias or heuristic that operates
unconsciously to impact a decision would make mistake recognition difficult. My aim here is
to focus exclusively on those biases and heuristics that have a prominent or significant role on
mistake recognition and acknowledgment.
21 SCHULZ, supra note 10, at 4.
22 Id. at 18; Kathryn Schulz: On Being Wrong, TED (Mar. 2011),
https://www.ted.com/talks/Kathryn_schulz_on_being_wrong?language=en
[https://perma.cc/TQU9-7ARJ].
made an error.23 Unlike the happy joy that accompanies the feeling of
rightness, the experience of error realization has been associated with
shame and stupidity and ignorance, indolence, psychopathology, and
moral degeneracy.24 Shame is triggered when there is a gap between an
ego ideal and an individuals conscious or unconscious awareness of
actual potential or performance.25 Thus, the shame emotion would likely be
triggered by a mistake that, even unconsciously, falls below ones self-
expectations. The shame emotion is acutely unpleasantit forces a
downward redefinition of oneself, and it is especially dehumanizing
when the triggering incident is exposed to other people who are important
to the offender.26 Relatedly, maintaining ones reputation is a powerful
motivator for decision-making and behavior. Jonathan Haidt argues that
people generally care more about reputation than reality, and that Platos
brother, Glaucon, got it right by realizing that the most important
principle for designing an ethical society is to make sure that everyones
reputation is on the line all the time. . . 27 For lawyers, reputation has been
recognized as the commodity they most cherish.28 Thus, a lawyer may
reasonably be unconsciously motivated to avoid recognizing a mistake that
amounts to a reputational blemish.
Mistake avoidance is driven by motivated reasoningthe
empirically demonstrated tendency for people to reach the conclusion they
prefer, especially if they have a vested personal interest in the result.29 In
practice, mistake avoidance is frequently viewed as self-justification
persuading yourself that everything is fine, you have not made a mistake,
and perhaps even going so far as to convince yourself that things are
actually better now. It is not an excuse or a lie you tell to othersit is a lie
23See Jennifer K. Robbennolt, Apologies and Medical Error, 467 CLINICAL ORTHOPEDICS &
RELATED RES. 376, 378 (2009).
25 See Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880,
1901 (1991) ([Shame] is triggered by tension between an individuals ego ideal and her
conscious or unconscious awareness of the egos actual potential.).
26 See id. at 190104. Dan Ariely and others have completed experiments showing that
people will generally cheat just enough so that their cheating does not bear negatively on their
self-concept, which suggests that people are motivated to avoid the difficult process of
updating their self-concept. See generally Nina Mazar et al., The Dishonesty of Honest People: A
Theory of Self-Concept Maintenance, 45 J. MKTG. RES. 633 passim (2008).
27 JONATHAN HAIDT, THE RIGHTEOUS MIND: WHY GOOD PEOPLE ARE DIVIDED BY POLITICS
AND RELIGION 74 (2012).
28 Tigran W. Eldred, Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing
Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in
Death Penalty Cases, 42 HOFSTRA L. REV. 473, 501 (2013).
29 See id. at 49395.
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you tell yourself with the unconscious objective of avoiding the mix of
feelings that can accompany the realization that you were wrong.30
Of course, the anxiety that accompanies any realization that we are
wrong perfectly reflects the urgency of our desire to be right.31 In the
legal workplace, attorneys understand that they need to be correct.
Attorneys are hired by clients who generally do not know substantive law,
procedural rules, or legal systems for dispute resolution; thus, clients need
to rely on their attorneys knowledge and professional judgment. The very
job of being a good lawyer, for seasoned practitioners and even for new
attorneys, is intertwined with being right and properly exercising good
judgment.32
Thus, while new attorneys understand that they will probably make
mistakes, they fear them and their potential consequences because they
know they are expected to be competent. Unlike their senior colleagues,
they may have a very shallow knowledge of what would happen to them if
they did make a mistake on a clients case. Would they be sanctioned?
Fired? Supervised more closely? Would their reputation be destroyed?
Would they lose credibility with the senior lawyers? As noted by one of the
attorneys we interviewed:
The supervising attorneys want to know if youre in over

your head. But as a young lawyer, you dont know if thats
lip service or if it will be held against you. I think it is held
against young attorneys. Mistakes make supervisors ask
whether you are progressing as fast as you should.
*Attorney at a tax law consulting firm with twenty
lawyers
Moreover, the new attorney does not have a track record of correct
decisions that might place the mistake into longitudinal perspective, both
30 See TAVRIS & ARONSON, supra note 1, at 45; see also Jonathan R. Cohen, The Immorality of
Denial, 79 TUL. L. REV. 903, 91011 (2005) (describing intrapsychic denial as a form of
cognitive distortion in which a persons conscious mind is unwilling to face an aspect of
reality and comparing it to defense mechanisms like repression, suppression, and
rationalization).
32 Indeed, the United States Supreme Court recently confirmed that new attorneys, after
graduating from law school and passing the bar exam, are presumed to be competent to
represent clients. See Connick v. Thompson, 563 U.S. 51, 6465 (2011) (noting that the training
provided by law school and study for the bar examination ensures that a new attorney is
equipped with the tools to . . . understand constitutional limits, and exercise legal
judgment.).
in the new lawyers mind and the minds of others at the workplace. Thus,
the new attorney, with only a shallow knowledge of actual consequences
that might accompany a mistake, may fear that a mistake will be career-
defining, or even career-ending, in a way that a more mature lawyer would
not. Under these circumstances, the new attorney may be particularly
motivated to avoid the realization of a mistake that will bring on even
more stress, dread, uncertainty, and potential humiliation.
B. Overconfidence Bias and Nave Realism
Overconfidence bias suggests that [a]lmost all of us hold positive,

optimistic views of our own qualities and prospects, thus making it
difficult to conclude we were wrong.33 Numerous studies have
demonstrated that people are overconfident about their abilities and their
competence to a statistically or logically impossible degree.34 In one study
of the legal profession, attorneys were asked to describe one of the cases
that they expected to go to trial and to indicate their degree of confidence
that they would meet their goals for the case.35 In general, attorneys
overestimated the probability that their goals would be met or exceeded.36
Even when the case concluded and the results did not support the
attorneys confident conclusions, more attorneys reported meeting their
goals than in fact had done so. Most seemed to believe that their
predictions were well calibrated with the actual results, and reported
feeling pleased or very pleased with the result.37 Thus, overconfidence in
their original predictions shielded them from recognizing, in hindsight,
that their predictions were mistaken. Moreover, experiments demonstrate
33 Rand, supra note 6, at 748; see Tali Sharot, The Optimism Bias, TIME (May 28, 2011),
http://content.time.com/time/health/article/0,8599,2074067,00.html [https://perma.cc/G5TB-
VPPU] ([A] growing body of scientific evidence points to the conclusion that optimism may
be hardwired by evolution into the human brain.).
34 See Joyce Ehrlinger et al., Why the Unskilled Are Unaware: Further Explorations of (Absent)
Self-Insight Among the Incompetent, 105 ORGANIZATIONAL & BEHAV. HUM. DECISION PROCESSES
98, 99 (2008) (citing numerous research studies showing people claiming to be above
average, including studies showing that elderly people tend to believe they are above
average drivers and that 94% of college professors think they do above average work).
35 See Jane Goodman-Delahunty et al., Insightful or Wishful: Lawyers Ability to Predict Case
Outcomes, 16 PSYCHOL. PUB. POLY & L. 133, 133 (2010).

36 Id.
37 ROBBENNOLT & STERNLIGHT, supra note 14, at 68, 425 ([Attorneys] appeared not to
realize that they had predicted better outcomes for their clients than had actually come to
pass.).
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that the overconfidence bias operates specifically with regard to ethical

self-perceptions and ethical decision-making.38
David Dunning and Justin Krugers extensive work in this field posits
that those who are unskilled at a task (described by Dunning and Kruger
as incompetent, for lack of a better term) hold the least accurate
assessment of their own abilitiesthey have little insight into their own
incompetence and despite making one mistake after another, they tend to
think they are doing just fine.39 This is now known in social psychology as
the Dunning-Kruger effect. It is a form of meta-ignorance; a double
curse because lack of skill contributes first to the generation of a mistake
and then prevents success at the metacognitive task of recognizing a
mistake.40 This finding holds true whatever the difficulty of the task,
whether the task tested was performed in the real world or a lab, whether
the task was ecologically representative and familiar or unfamiliar to the
participants, and whether the participants were given monetary or social
incentives to be accurate in their assessments.41 The unskilled lack the
metacognitive skill to recognize that they have made a mistake, and the
general problem is in their self-estimation, not estimation of peers.42
Nave realism, a similar behavioral bias, acts to reinforce our decisions and
prevent us from recognizing mistakes, because it results in the feeling that
our views are particularly authentic and that others should agree with us if
they are rational and objective.43
An inability to self-assess will prevent attorneys from recognizing
mistakes. In particular, if the Dunning-Kruger effect applies in a law firm
setting, new attorneys, who are likely to be less skilled than senior
colleagues, are at greater risk of succumbing to the overconfidence bias.
Even if motivated by firm culture or supervising attorneys to reflect
honestly and accurately on their performance, the overconfidence
38 See Chugh et al., supra note 9, at 1115 (discussing studies that show people believe they
are more honest, objective, and ethical than others).

39 David Dunning, The Dunning-Kruger Effect: On Being Ignorant of Ones Own Ignorance, in
44 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 247, 260 (James M. Olson & Mark P. Zanna
eds., 2011).
40Ehrlinger et al., supra note 34, at 2.
41See generally id. at 99109 (describing five studies testing the Dunning-Kruger effect and
addressing critiques and alternative explanations).
42 Id. at 103. The studies in this paper additionally suggest that top performers may
consistently underestimate their performances relative to peers because they overestimate the
abilities of their peers. Id.
43 See ROBBENNOLT & STERNLIGHT, supra note 14, at 21; see also Pronin et al., supra note 5, at
36970 (recognizing the role of nave realism in creating an asymmetry in bias perceptions).
When confronted with evidence that others do not share our view, we assume, without giving
it much thought, that we are right and their view must be subject to some bias.
experiments described above suggest that new attorneys with limited skills
will still be unable, even upon reflection, to recognize their mistakes.44
C. Confirmation Bias
Confirmation bias is the tendency to focus on information that

confirms our decisions and to undervalue information that cuts the other
way.45 We are very sure that we are correct; thus, we fail to challenge
ourselves by looking for disconfirming evidence. Even if the disconfirming
evidence is placed right in front of us, we would find a way to criticize,
distort, or dismiss it so that existing conclusions are supported or even
strengthened.46 Some scholars have described this in terms of relevancy:
confirming evidence appears more relevant to us than disconfirming
evidence, and the confirmation bias is a selective process that favors
information that appears to be relevant.47 Belief perseverance is a related
phenomenon describing the tendency to adhere to theories even when
information wholly discredits the theorys evidentiary basis.48 Belief
perseverance is directly related to our inability to recognize our mistakes
because it suggests that people cling to original theories or beliefs and fail
to adjust them, even in response to proof that their original conclusions
were demonstrably false.49
Numerous experiments have demonstrated the robustness of
confirmation bias.50 In one experiment, participants who were asked to
identify a suspect after reviewing police files were more likely than
participants who were not asked to identify a suspect to remember
evidence consistent with the named suspects guilt, to discount evidence
inconsistent with the named suspects guilt, and to interpret ambiguous
44 Moreover, some commentators posit that younger attorneys from the so-called
Millennial generation (those born between 1982 and 2000) have a much harder time
admitting mistakes than other generations because of their strong sense of entitlement and
their confidence. See Stephen D. Easton & Julie A. Aseid, And Bad Mistakes? Ive Made a Few:
Sharing Mistakes to Mentor New Lawyers, 77 ALB. L. REV. 499, 50406 (2014) (suggesting that
Millennials have difficulty recognizing and acknowledging their mistakes because they were
raised to believe they never make any).
45 See Rand, supra note 6, at 748.
46 TAVRIS & ARONSON, supra note 1, at 18.
47 See REASON, supra note 16, at 169.
48 Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science,
47 WM. & MARY L. REV. 1587, 1599 (2006).

49 Id.
50 See ROBBENNOLT & STERNLIGHT, supra note 14, at 16 n.38 (collecting experiments
involving criminal investigations, intelligence officers, police officers, medical residents, and
bank and industrial managers).
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evidence in ways consistent with the named suspects guilt.51 Moreover,

participants who were asked to identify a suspect reviewed less
information overall because they disproportionately chose to pursue
additional lines of investigation that focused on the named suspect.52
Similarly, experiments testing belief perseverance have found, for example,
that subjects will cling to theories they formed based on purportedly
authentic histories, even after they were told that the histories were
completely false and were entirely discredited.53
In the legal workplace, confirmation bias is particularly troubling, and
it operates in a unique way for the new attorney. While senior lawyers
generally become accustomed to reviewing legal research prepared for
them by others, new attorneys, recently trained on the latest research tools,
are the experts on legal research. A new attorney, working under the
influence of confirmation bias, will focus his research efforts on finding
confirmation of conclusions already reached, even if they are mistakes. It is
easy to imagine a new attorney putting in many research hours to do no
more than confirm earlier conclusions. As confirming research mounts, the
new attorney feels increasingly confident in his mistaken conclusions and
the mistake is both unnoticed and entrenched.
D. Cognitive Dissonance
Cognitive dissonance is an uncomfortable feelinga state of

tensionthat occurs when a person realizes she is holding two
psychologically inconsistent ideas or beliefs, which can be caused by the
gap between behavior and self-identity.54 To resolve the dissonance, a
person will attempt to achieve more consistency between beliefs and
recognized action. Cognitive dissonance can be a source of moral
motivation if one responds by recognizing and changing unethical or
unwanted behaviors to match self-image.55 Alternatively, however,
cognitive dissonance can be a powerful motivator to refuse even to
recognize mistakes, thus ensuring that the unacknowledged gap cannot
create dissonance. Cognitive dissonance underlies most heuristics and
cognitive biases that result in an action to repress a mistake from our
consciousness.
51Jean R. Sternlight & Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists:
Insights for Interviewing and Counseling Clients, 23 OHIO ST. J. DISP. RESOL. 437, 438 (2008).
52Id. at 16.
53See Burke, supra note 48, at 160001 (discussing this study and other experiments
demonstrating belief perseverance).
54 See Robbennolt, supra note 23, at 378 (briefly discussing cognitive dissonance); TAVRIS &
ARONSON, supra note 1, at 13.

55 See Regan, Jr., supra note 14, at 952.
With regard to mistake recognition in law, the tension is likely to be

greatest with ethical mistakes since they are most likely to produce conduct
that is starkly inconsistent with personal values. For example, if a new
attorney begins her professional career with an understanding of herself as
someone who is organized and careful, and ultimately discovers that she
has been failing to respond to client emails and even missing critical filing
deadlines, she will likely experience cognitive dissonance. She will need to
respond in some way to the dissonance to reduce the tension. One
approach would be to recognize and attend to her mistakes by reassessing
her organizational abilities, acknowledging that they are not as strong as
she thought, and spending some time learning how to improve. But if she
is busy and stressed, she may decide instead to engage in the sort of self-
justification that makes learning from mistakes impossible. She might tell
herself, for example, that everyone drops the ball sometimes, and given the
workload the firm expects her to handle, it is certainly no big deal to
drop a few emails or miss a few deadlines. By rapidly dispatching the
uncomfortable feeling of dissonance, the new attorney has excused her
actions and failed to recognize her oversights as mistakes.56
E. Characteristics and Context of Legal Mistake
The specific characteristics of a mistake affect our ability to recognize

the mistake. For example, if a mistake is permanentif it is the kind of
mistake that cannot be fixed or un-donewe will be less likely to
recognize it as a mistake that matters. In their book, Mistakes Were Made
(But Not By Me), Carol Tavris and Elliot Aronson describe racetrack
experiments where people become more certain they are right about
something they just did if they cant undo it, such as if they have already
placed their bet, as opposed to if they are still thinking about which bets to
place.57 In a legal practice, smart practitioners can often fix mistakes after
they are made; for example, a misstatement made in a filing or at oral
argument to a court can be addressed and corrected in an errata
declaration. Other mistakes, however, are permanent, and the mistakes
intransience might motivate an unconscious rationalization that will
prevent full realization and acceptance of the mistake. Take, for example, a
terrible legal blunder: failure to file an appeal by the deadlinea
jurisdictional mistake that cannot be fixed with a motion. Once an attorney
learns about the missed deadline, she may begin rationalizing that her
client probably would have lost the appeal anyway and she probably saved
her client thousands of dollars in appellate legal fees that would have been
56 See TAVRIS & ARONSON, supra note 1, at 1314 (defining cognitive dissonance and linking
it to self-justification and failure to recognize mistake).

57 Id. at 22.
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incurred with no good result. Before too long, the magic worksthe
attorney did not make a mistake.
In addition, a mistake is less likely to be recognized if time is needed
before the mistake will be revealed. Consider this testimonial example:
I responded to the Governments request for information

by producing client and case information without waiting
for an official subpoena. This is an ethical violation.
Nothing happened for four years, then the Government
filed something that referred to my document disclosures.
At that time, it slowly dawned on me that I had made a
serious, ethical mistake.
*Commercial litigation attorney in fifty-lawyer firm
Moreover, if a significant gap in time exists between the action and the
poor outcome that resulted from that action, diminished memory and lack
of context will likely create barriers to mistake recognition.58 In addition, in
reviewing a decision in hindsight, the decision may look fine to us because
we lack sufficient information to know what might have occurred if we
had decided things differently. In a legal setting, for example, an attorney
who decided against filing a winnable pretrial motion to dismiss may
never realize that she could have settled the case for far less had she filed
that motion.59
Finally, situational context may trigger unconscious biases or
cognitions that directly impact mistake recognition. An employee in an
organization, or a new associate in a law firm, for example, will be
influenced by those around her in ways that may solidify improper action
and prevent her from recognizing that she has made a mistake. Moreover,
situational dynamics may operate to prevent us from recognizing the
mistakes or misbehavior of clients or other lawyers on our team. Instead,
having made a commitment to a client or to a decision, we unconsciously
58 See JOSEPH T. HALLINAN, WHY WE MAKE MISTAKES: HOW WE LOOK WITHOUT SEEING,
FORGET THINGS IN SECONDS, AND ARE ALL PRETTY SURE WE ARE WAY ABOVE AVERAGE 9 (2009)
(discussing memory and context). Of course, the existence of an unfavorable outcome does
not necessarily mean it was brought about by a mistake, and it may take time to investigate
the cause of the outcome to determine what went wrong and reveal the mistake. In other
words, a poor outcome caused by error is often not distinguishable from a poor outcome that
occurred despite reasonable care. See Richard C. Boothman et al., Nurturing a Culture of Patient
Safety and Achieving Lower Malpractice Risk Through Disclosure: Lessons Learned and Future
Directions, 28 FRONTIERS HEALTH SERVICES MGMT. 13, 16 (2012) (discussing medical outcomes
caused by medical error).
59 ROBBENNOLT & STERNLIGHT, supra note 14, at 425.
rely on our cognitive resources to form positive images, miss warning

signs, and ignore opportunities to realize mistake.60 This entrenchment is
even stronger when we have endured a difficult initiation or have sunk
costs in a venture or an outcome.61 A key experiment conducted in 1959, for
example, found that a positive relationship existed between the difficulty
of a participants initiation into a group and the participants subsequent
liking of the group.62 Ultimately, people will value something without
question, even if objectively they should not value it, if they voluntarily
chose to work hard to get it.63
A vested interest and initiation analysis may apply in multiple ways in
the practice of law, especially for the new attorney. New attorneys may
invest more than senior lawyers in many individual lawyering decisions
because of the time and energy required to accomplish the lawyering task.
In addition, the initiation impact plays out in a big-picture way for new
attorneys who have recently endured quite an intense initiation before
being allowed to enter the profession of their choice and practice law in the
environment they selected. For example, the new attorneys decision to go
to law school likely came with a significant investment of both money and
time, and the rigors of law school are stressful and difficult for many
60 See Donald C. Langevoort, Where Were the Lawyers?: A Behavioral Inquiry into Lawyers
Responsibilty for Clients Fraud, 46 VAND. L. REV. 75, 117 (1993) (positing that lawyers may not
see mistakes or warning signs because they have committed to representation and built a
positive schema regarding the client and the situation.).
61See SCHULZ, supra note 10, at 194 (discussing sunk cost analysis); TAVRIS & ARONSON,
supra note 1, at 17 (Severe initiations increase a members liking for the group. . . [I]f a person
voluntarily goes through a difficult or painful experience in order to attain some goal or object,
that goal or object becomes more attractive.).
62 See Elliot Aronson & Judson Mills, The Effect of Severity of Initiation on Liking for a Group,
59 J. ABNORMAL & SOC. PSYCHOL. 177, 177 (1959). The 1959 experiment was replicated in an
effort to rule out alternative explanations and the replication lent considerable additional
support to the original suffering-leading-to-liking hypothesis. See Harold B. Gerard &
Grover C. Mathewson, The Effects of Severity of Initiation on Liking for a Group: A Replication, 2 J.
EXPERIMENTAL SOC. PSYCHOL. 278, 278 (1966).
63 See Gerard & Mathewson, supra note 62, at 27887. In the Gerard and Mathewson
experiment, participants were female college students, who after going through a series of
initiations, listened to a five-minute tape recording of three girls having a discussion of
cheating in college that was absolutely worthless, consisting mostly of hemming, hawing,
clearing of throats, and pauses. A subset of the participant group was told that this was a
recording of the discussion group they were slated to join. Moreover, prior to listening to this
grueling discussion, a subset of the participant group was put through an initiation that
included severe shocks, while others had a lighter initiation. The results of the experiment
show that subjects who anticipated joining the group and those who endured severe shock
initiation tended to evaluate both the discussion and the participants significantly more
highly than those who had no expectation or who received a lighter initiation. Id.
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students.64 After graduation, studying and taking the bar exam and
completing the requirements for character and fitness scrutiny can be
protracted and painful. The law students initiation is akin to Gerard and
Mathewsons severe shock initiation. After going through all that, once
the goal is obtained and the recent law graduate is allowed to join the
group, she is going to be unconsciously inclined to like it. For the new
attorney, these rose-colored glasses mean that recognizing a professional
lawyering mistakeher own or one made by those she works withwill
be particularly difficult.
Other situational factors may operate in a law firm environment to
prevent mistake recognition. For example, applying Stanley Milgrams
work on obedience to the law firm environment, associates in a law firm
environment would likely perceive senior lawyers as both expert and
legitimate authority figures: if new lawyers are given orders by such an
authority figure to engage in mistaken or even unethical lawyering
conduct, they will likely follow such orders without question or without
the hindsight reflection necessary to realize a mistake.65 Moreover,
pluralistic ignorance in an organizational context can operate to stifle the
kind of reflection that leads to mistake recognitionwhen a new associate
looks around to others in her work environment and sees that no one else
is concerned about a mistake, she will assume that all is well.66 Finally,
diffusion of responsibility in a work group context may prevent a new
attorney from recognizing a mistake because, assuming that more senior
lawyers are responsible, she fails to own the mistake, which then survives
unexamined.67 These are a few examples of the types of situational
64 The New York Times reported that law school student debt has ballooned, rising from
about $95,000 among borrowers at the average school in 2010 to about $112,000 in 2014.
Noam Scheiber, An Expensive Law Degree, and No Place to Use It, N.Y. TIMES (June 17, 2016),
https://www.nytimes.com/2016/06/19/business/dealbook/an-expensive-law-degree-and-no-
place-to-use-it.html?_r=3 [https://perma.cc/FH4L-RF3L]. Other data suggests that that 80% of
law students finance their legal education, the average debt is over $80,000 for public school
graduates, and the average debt is over $122,000 for private law school graduates. See Lakisha
Davis, Dont Let Law School Debt Overshadow Your Future, AM. BAR ASSN (June 6, 2016),
http://www.americanbar.org/groups/litigation/committees/jiop/news_analysis/articles/spring
2016-0616-dont-let-law-school-debt-overshadow-your-future.html [https://perma.cc/X5RZ-
S2YY].
65 See David J. Luban, The Ethics of Wrongful Obedience, in ETHICS IN PRACTICE: LAWYERS
ROLES, RESPONSIBILITIES, AND REGULATION 1, 94 (Deborah L. Rhode ed., 2000); OGrady,

Wrongful Obedience, supra note 13, at 33; Andrew M. Perlman, Unethical Obedience by
Subordinate Attorneys: Lessons From Social Psychology, 35 HOFSTRA L. REV. 451, 460 (2008).
66 See Robbennolt & Sternlight, supra note 2, at 1148 (discussing pluralistic ignorance).
67 See id.
dynamics that have the specific potential to prevent a new attorney from
reflecting on her action and realizing her mistake.
II. Mistake Acknowledgement
At my second work place, the incentive was strong not to

disclose a mistake, but only if you were sure no one would
find out about it.
*Business attorney with three and half years of practice
experience
The environment at our firm is very encouraging when it

comes to admitting mistakeactually, not disclosing a
mistake is much more intimidating than disclosing one.
*Attorney at a large commercial litigation firm
Upon the realization that we have made a mistake, our thoughts turn
to appropriate responses. For attorneys who have made a mistake in their
work, that generally involves acknowledging the mistake to other lawyers
on the work team and potentially to affected clients. For experienced
attorneys, the stakes associated with mistake can be high because perhaps
they should have known better and they may fear the mistake will
damage their established reputations. For new attorneys, who presumably
will make more mistakes than others on a legal work team,
acknowledgement means, at a minimum, that they must initiate what they
likely believe will be an uncomfortable and unwelcome conversation with
senior lawyers.
A wealth of information on disclosure of mistake and apology exists in
the health care field; thus, this Part and Part IV of this Article will draw
frequently on that data and suggest parallels to the legal profession.
Doctors and hospitals are increasingly adopting extreme honesty policies
(sometimes called Im Sorry policies) and training personnel on how to
acknowledge medical mistakes and apologize to patients.68 Yet, despite this
movement and rules that have required disclosure of medical mistake to
patients, both explanation and apology for medical error still remain
infrequent.69 In the legal profession, one Ninth Circuit Court of Appeals
68 See infra notes 13941 and accompanying text.

69 See Robbennolt, supra note 23, at 378 (noting that in a survey of patients who brought suit
against health professionals, 40% reported no explanation at all, 13% reported that
responsibility for what happened was accepted in full or in part, and only 15% of patients
reported receiving an apology, and noting another survey showing that only one-third of
respondents (both physicians and non-physicians) who had experienced a medical error in
5/11/2017
judge has noted that acknowledgement of error is rare among appellate

judges who make a plain mistake with the facts or law in a published
opinion.70 Moreover, while scholars are increasingly encouraging lawyers
to counsel clients on apologizing to others,71 the lawyers traditional
approach to client error is often described as deny and defend.72
Jonathan R. Cohen has noted that our legal system typically encourages
denial, and denial has become purely a matter of strategy.73 Thus, it is
perhaps not surprising that the psychological difficulties that attach to
articulating ones mistakes to others apply with great force to lawyers, who
have generally embraced deny and defend as an overall approach to
client error, and such lawyers would be likely to apply such an approach to
their own lawyering errors as well.
A. Rules and Guidelines Pertaining to Mistake Acknowledgment
In the medical field, professional rules, ethical guidelines, hospital

accreditation standards, and state statutes explicitly require hospitals or
doctors to disclose adverse events to patients, including those based on
medical mistake.74 In law, ethics guidelines relating to mistake
their families reported they received either an explanation or an apology for what happened);
see also Boothman et al., supra note 58, at 15 ([I]t is no secret that the medical community has
avoided disclosing medical errors to patients with an estimated one in four errors disclosed.);
Jennifer K. Robbennolt, What We Know and Dont Know About the Role of Apologies in Resolving
Health Care Disputes, 21 GA. ST. U. L. REV. 1009, 101213 (2005) (reporting a recent survey of
hospital risk managers which found that 68% reported that they would apologize as part of a
disclosure, but only 33% would accept responsibility).
70 See Andrew D. Hurwitz, When Judges Err: Is Confession Good for the Soul?, 56 ARIZ. L. REV.
343, 344 (2014) ([A]lthough many examples can be found of judges explaining why their
previous view of the law has evolved, there are relatively few published decisions
acknowledging common human error [made by the judge].). I believe the same comment can
be made about law professors (or perhaps professors in general). I had a lively discussion
with colleagues at a faculty workshop on this paper on the question of how many of us have
ever apologized to our students for making a mistake in class. It appeared that the
opportunities where apology may have been warranted were fairly common, but the actual
articulation of an apology was not.
71 See Jennifer K. Robbennolt, Apologies and Legal Settlement, 102 MICH. L. REV. 460, 463
(2003) ([S]cholars have suggested that lawyers should discuss apologies with their clients
more than they now do.).
72 See e.g., Kevin Sack, Doctors Say Im Sorry Before See You in Court, N.Y. TIMES (May 18,
2008), http://www.nytimes.com/2008/05/18/us/18apology.html?_r=0 [https://perma.cc/5ZQA-

ZW4Z].
73 Cohen, supra note 30, at 904, 947.
74 Jennifer K. Robbennolt, Professor of Law and Psychology, has written extensively on this
topic. See Robbennolt, supra note 23 ([T]he American College of Physicians and the American
Medical Association oblige the disclosure of errors, the Joint Commission on the Accreditation
acknowledgment, when they exist, spring from general ethical duties. For
example, essentially all states have adopted a version of ABA Model Rule
1.4, which requires lawyers to keep clients reasonably informed about
the status of a matter and advised of significant developments, which
includes providing explanations that are sufficient to permit the client to
make informed decisions about the representation, including whether to
sue the lawyer.75 Some states have issued ethics opinions making it clear
that the duty to inform a client includes the duty to disclose promptly the
lawyers material mistake.76
Moreover, ethical rules prohibiting dishonesty, deceit,
misrepresentation, or fraud, such as Model Rule 8.4(c), may be implicated
if an attorney fails to disclose a mistake to a client by actively and
intentionally concealing the error from the client or misrepresenting facts
about the error.77 Finally, ethical rules related to conflict of interest, such as
of Hospital Organizations requires the disclosure to patients of unanticipated outcomes, and

many states now require hospitals or doctors to disclose adverse events to patients.);
Robbennolt, supra note 69, at 1011 (noting that Pennsylvania, Florida, Nevada, and New Jersey
have statutes that require hospitals or doctors to disclose adverse outcomes to patients, and
that the American College of Physicians Ethics Manual and the American Medical Association
require disclosure).
75 See MODEL RULES OF PROFL CONDUCT r. 1.4 (AM. BAR ASSN 2015) (A lawyer shall: (1)
promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in Rule 1.0(e) . . . ; (2) reasonably consult with the client about
the means by which the client's objectives are to be accomplished; (3) keep the client
reasonably informed about the status of the matter; (4) promptly comply with reasonable
requests for information; and (5) consult with the client about any relevant limitation on the
lawyer's conduct when the lawyer knows that the client expects assistance not permitted by
the Rules of Professional Conduct or other law; [and] [a] lawyer shall explain a matter to the
extent reasonably necessary to permit the client to make informed decisions regarding the
representation.).
76 See, e.g., Colorado Bar Assn, Formal Op. 113 (July 18, 2015). A mistake is material if it
will likely result in prejudice to a clients right or claim. Id. Significant developments include
matters adverse to the clients interests and those resulting from the lawyers own actions, if
the lawyers actions are likely to result in prejudice to a clients rights or claim. Id.
77 See, e.g., id. American Bar Association Model Rule of Professional Conduct 8.4 states that
[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so, or do so through the acts
of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the
administration of justice; (e) state or imply an ability to influence improperly a government
agency or official or to achieve results by means that violate the Rules of Professional Conduct
or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law. MODEL RULES OF PROFL CONDUCT r. 8.4
(AM. BAR ASSN 2015).
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Model Rule 1.7, may be relevant because if a lawyers mistake gives rise to
a potential malpractice claim, the lawyers personal interests are generally
adverse to the clients interests.78
B. Behavioral Impediments to Mistake Acknowledgement
Many of the behavioral and cognitive dynamics that make it difficult to

recognize a mistake have similar impacts on acknowledging and
apologizing to others for mistakes. The psychological difficulties that
accompany mistake acknowledgment include avoiding embarrassment,
humiliation, shame, hurt, anger, and the fear of unpleasant ramifications,
including job loss.79 In Arizona, for example, a lawyer went to great lengths
to avoid admitting to her client that she missed a statute of limitations
deadlineinstead of confessing error and compensating the client for her
mistake, she invented a fake settlement, created false paperwork and a
false court file, and was presumably intent on paying the client the
settlement money out of her own pocket.80 The Disciplinary Commission
of the Supreme Court of Arizona found that the attorneys misconduct
involving the fabrication of settlement documents and misrepresentations
to the client was to achieve a particular benefit or goal of protecting herself
from humiliation and out of fear of losing her job.81 Of course, the
humiliation she sought to avoid was admitting she made a serious
mistake in handling the clients case. Importantly, the fear of job loss
discussed in this case reflects the reality that, in general, denying a mistake
or keeping it quiet makes a certain economic sense: admitting a mistake
can trigger obvious and apparent economic loss while the consequences of
denial are usually uncertain; thus, loss aversion reinforces denial.82 Indeed,
in a well-known article, Professor Lisa Lerman concluded, based on
interviews with twenty practicing lawyers, that [o]ne of the most common
reasons that lawyers deceive clients is to avoid having to disclose their
mistakes, and that lawyers most frequently deceive their clients for
economic reasons.83
78 MODEL RULES OF PROFL CONDUCT r. 1.7(a) (AM. BAR ASSN 2015); see Cooper, supra note
19, at 18486.
79 Robbennolt, supra note 23; see Francesca Gino & Bradley Staats, Why Organizations Dont
Learn, HARV. BUS. REV. (Nov. 2015).

80 In re Gieszl, No. 03-1278, 2005 WL 6317753, at *23 (Ariz. Disp. Commn. 2005).
81 Id. at *4.
82 Cohen, supra note 30, at 943.
83 Lisa G. Lerman, Lying to Clients, 138 U. PA. L. REV. 659, 705, 725 (1990); see also Rae M.
Lamb et al., Hospital Disclosure Practices: Results of a National Survey, 22 HEALTH AFF. 72, 76
(2003) (stressing the importance of malpractice coverage and that fear of medical malpractice
litigation [is] still the most commonly cited institutional barrier to developing and
Moreover, the type of error we make may impact our willingness to

acknowledge it to others. Studies in the health field show that we are much
less likely to disclose preventable harms than non-preventable harms of
comparable severity.84 Errors that are more likely to go unnoticed have a
greater tendency to be unacknowledged to others.85 And, of course, context
matters. The culture of the legal profession and the hierarchical structure of
many legal workplaces may unwittingly serve to discourage mistake
acknowledgment or learning from mistake. In law, as in medicine, the
desire for and history of self-regulation and an expectation (by self, peers,
and [clients]) of perfection may make it difficult to apologize for errors.86
Moreover, organizations structured hierarchically do not typically
encourage mistake acknowledgement because firm leaders often view error
as indicative of incompetence leading people in organizational
hierarchies to systematically suppress mistakes and deny
responsibility.87 Social psychology scholars in business have argued that
companies frequently fail to become learning organizations because they
focus too much attention on success, rewarding only those who win or
deliver according to plan, with the result that the company or the work
group, often unconsciously, institutionalizes a fear of failure among
employees.88 Similarly, in law, work teams developed within hierarchically
organized firms present their own moral universe, which may make
winning the central mission of the team.89 A new lawyer could
reasonably fear acknowledging mistake within such synergized work
teams and the team may unwittingly discourage any such
acknowledgement.
Finally, uncertainty about what to disclose and fear of premature or
unnecessary disclosure may prevent mistake acknowledgement entirely.
implementing disclosure policies.).

84 See Lamb et al., supra note 83, at 7677 (describing the results from their studies).
85 See Robbennolt, supra note 23 (discussing study showing that the inclination to offer an
apology is weaker when the error is one that would be less apparent).
86 See id. at 377 (citing Gallagher and colleagues for looking at the norms, values, and
practices that constitute the culture of medicine that inhibit disclosure and apology).
87 Amy C. Edmondson, Learning from Mistakes is Easier Said than Done: Group and
Organizational Influences on the Detection and Correction of Human Error, 32 J. APPLIED BEHAV.
SCI. 5, 9 (1996) (Hierarchical structures thus discourage the kind of systematic analysis of
mistakes that would allow people to better design systems to prevent them.).
88 See Gino & Staats, supra note 79.
89 See MILTON C. REGAN, JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER 41
42 (2004) (noting that it is probably common for lawyers to construct a moral universe
particular to the matter of their work team and that lawyers in large firms may find
themselves responding more to the culture of their practice group rather than to the firms
culture).
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Premature disclosure may cause unnecessary distress to clients or those

affected by the mistake; thus resulting in confusion and ultimately a
decision not to disclose anything.90 Similarly, problems can arise when
information is disclosed that does not need to be disclosed, causing
needless alarm. In medicine, healthcare organizations have struggled to
determine what to disclose and what not to disclose to patients, sometimes
unnecessarily creating problems by disclosing too much information, with
the result that health care professionals frequently opt simply to remain
silent.91 Similarly, disclosure may be considered unnecessary for a mistake
that can be fixed or that ultimately proves to be of no consequence to the
outcome.92
III. Facilitating Mistake Recognition and Acknowledgement

Individual and Systemic Approaches
A mistake is a learning opportunity within a firm or a workgroup, but

only if behavioral constraints are overcome such that the mistake is
actually recognized and acknowledged. Recently, an impressive body of
scholarship has emerged that is devoted to thinking about how to improve
a law firms culture or ethical infrastructure to enhance legal decision-
making within the firm.93 My focus in this Part is subtly different from this
90 See Kathleen M. Mazor et al., Communication With Patients About Medical Errors, JAMA
INTERNAL MED. (Aug. 2004), http://archinte.jamanetwork.com/article.aspx?articleid=760546.

91 See Revised Disclosure Standard Presents New Compliance Challenges, AHC MEDIA (July 1,
2002), https://www.ahcmedia.com/articles/109942-revised-disclosure-standard-presents-new-
compliance-challenges (on file with publication) (noting that the Joint Commission on
Accreditation of Healthcare Organizations revised its disclosure standard to encourage more
disclosures, but it never intended that providers tell patients about every single detail
involving their care).
92 See Lerman, supra note 83, at 727 (Some lawyers believe that if the errors can be fixed
they need not tell the client about them.); see also Revised Disclosure Standard Presents New
Compliance Challenges, supra note 90 (providing that if a patient had an adverse drug
reaction, but we reversed it, there is no need to disclose the reaction to the patient, despite
the obvious fact that good reasons exist to disclose, even after it is corrected, so that patient
knows going forward to avoid the drug). Lawyers, in particular, are trained to see a problem
from different perspectives; thus, it is certainly not unreasonable to think that individuals
trained in the law may perceive a lawyering error as harmless when considered against an
outcome. See, e.g., Hurwitz, supra note 70, at 348 ([W]hen judges do admit errors, sometimes
they go to extraordinary lengths to avoid changing the ultimate outcome.).
93 As Judith McMorrow recently noted, [a] footnote cannot do justice to the literature that
applies behavioral insights to decision making within law firms. Judith A. McMorrow, In
Defense of the Business of Law, 40 FORDHAM URB. L.J. 459, 470 n.61 (2013) (citing key articles).
Ted Schneyer is generally credited with dubbing the trappings of the law firm bureaucracy as
the ethical infrastructure of the legal workplace. See Ted Schneyer, A Tale of Four Systems:
Reflections on How Law Influences the Ethical Infrastructure of Law Firms, 39 S. TEX. L. REV. 245,
approachI wish to explore specifically what individual attorneys and law

firms might do to increase the odds that attorneys will recognize and
acknowledge that they have made a mistake.
A. Individual Facilitators
As the above analysis suggests, when we are hard on ourselves and

blame ourselves for a mistake, we are likely to experience the shame that
accompanies mistake recognition; thus, we are unconsciously motivated to
avoid mistake recognition entirely. Given the behavioral constraints on
mistake recognition, and the comfort that accompanies denial, individual
mistake recognition and acknowledgement requires a conscious and
concentrated effort to reflect carefully, forgive ourselves thoughtfully, and
move on to learn from mistake.
Psychological research suggests that individuals who adopt a growth
mindset are more inclined to recognize their own mistakes and view them
as learning opportunities than individuals who adopt a fixed mindset,
who are inclined to view mistakes as indications of their own
incompetence or stupidity.94 The behavioral insights discussed above
suggest that if we tend to view mistakes as a negative reflection on our core
intelligence, we will be unconsciously motivated to keep mistakes below
our awareness. Thus, we can increase our odds of recognizing and learning
from our mistakes if we work to adopt a growth mindset. In a recent
commentary, Carol Dweck shared her thoughts on how to best implement
the growth mindset.95 Dwecks primary suggestion is to reflect: to watch
for fixed-mindset reactions when we face certain triggers, such as setbacks
or criticisms in our work, and reflect carefully on how such triggers make
us feel.
In the practice of law, adopting the habit of being a reflective
practitioner will allow the attorney to accept both fixed and growth
246 (1998); see also Elizabeth Chambliss & David Wilkins, Promoting Effective Ethical
Infrastructure in Large Law Firms: A Call for Research and Reporting, 30 HOFSTRA L. REV. 691, 692
(2002). A similar wealth of literature exists in the business arena with regard to organizational
compliance models. See Donald C. Langevoort, Monitoring: The Behavioral Economics of Inducing
Agents Compliance with Legal Rules, 2002 COLUM. BUS. L. REV. 71, 72 (2002) (Recent years have
brought an abundance of scholarly and practical literature on the task of organizational
compliance.).
94 See CAROL DWECK, MINDSET: THE NEW PSYCHOLOGY OF SUCCESS 67 (2006) (developing
the idea of fixed versus growth mindsets with regard to how people cope with mistakes and
failure).
95 Carol Dweck, Commentary: Carol Dweck Revisits the Growth Mindset, EDUC. WK. (Sept.
23, 2015), www.edweek.org/ew/articles/2015/09/23/carol-dweck-revists-the-growth-

mindset.html [https://perma.cc/JL2E-HCN8] (As weve watched the growth mindset become
more popular, weve become much wiser about how to implement it.).
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mindset tendencies and embark upon the journey to a growth mindset.96

The importance of reflection in the practice of law is not newit is
commonly taught in law school in clinical legal education programs, where
faculty members typically guide law students through reflection exercises
after students perform lawyering tasks.97 The goal of such programs is not
only to educate students on the lawyering task at hand through reflection
and awareness, but also to graduate students who will appreciate the
importance of reflecting on their work and continue to reflect as lawyers
when they leave law school and enter the profession. Such reflection
invites improvement and learning from mistake on several levels,
including, according to Dweck, by advancing the reflective individual
toward more growth mindset capabilities. Thus, attorneys, and new
attorneys in particular, will do well to borrow from clinical legal education
pedagogy and adopt routines that require regular reflection and self-
awareness in their practice.98
Similarly, self-forgiveness likely plays a role in reducing humiliation
and easing mistake recognition. As Jeffrie G. Murphy suggests, forgiveness
may overcome a variety of negative feelings against a wrongdoer, even
when the wrongdoer is yourself, including resentment, anger, loathing,
96 Id. See generally DONALD A. SCHN, THE REFLECTIVE PRACTITIONER: HOW PROFESSIONALS
THINK IN ACTION 300 (1983) (defining reflective practices that allow professionals to integrate
fixed and growth mindsets). In recent years, scholars have explored the benefits of integrating
mindfulness as a component of ethical legal decision making; if a mindfulness practice
promotes careful reflection, it too may facilitate mistake recognition and acknowledgement.
See Peter H. Huang, How Improving Decision-Making and Mindfulness Can Improve Legal Ethics
and Professionalism, 21 J. L. BUS. & ETHICS 35, 6065 (2015) (offering a primer on mindfulness
and connecting mindfulness with behavioral economics).
97 See Timothy Casey, Reflective Practices in Legal Education: The Stages of Reflection, 20
CLINICAL L. REV. 317, 32022 (2014) (presenting an organizational model for developing
reflective capacity in law students); see also DAVID F. CHAVKIN, CLINICAL LEGAL EDUCATION: A
TEXTBOOK FOR LAW SCHOOL CLINICAL PROGRAMS 1 (2002) (describing clinical legal education
as consistent with Donald Schns reflective practicum because students learn by doing
with the help of faculty coaches); J.P. Ogilvy, The Use of Journals in Legal Education: A Tool for
Reflection, 3 CLINICAL L. REV. 55, 60 (1996).
98 See Ogilvy, supra note 97, at 62. Clinical legal education programs use a variety of
techniques to encourage student-lawyer reflection including reflection forms and journaling

assignments. Id. A reflection form might ask students to describe how they prepared for a
lawyering experience, what surprised them about the experience, what they did well, what
they could improve on, and even, whether they believed they made any mistakes. See id. at
5859 n.7. Clinical supervisors generally do not provide students with feedback on their
lawyering until after students have fully reflected on their own, which gives students a chance
to develop reflection and self-awareness skills without falling back on what their supervisors
think. See id. at 98. There is no reason such practices should stop in law schoola new
attorney should continue to reflect in practice and even bring their written reflections to
supervising lawyers for review when receiving feedback.
disappointment, or sadness.99 If an ethical mistake rises to the level of

producing moral hatred of self, Murphy posits that a kind of shame [is]
placed on top of guilt: guilt over what one has done and shame that one
has fallen so far below ones ideal of selfhood. . .100 Research suggests that
genuine self-forgiveness for wrongful behavior can halt that behavior in
its tracks, while failure to self-forgive results in avoidance and
continuation of the negative behavior.101 A thoughtless, cheap-grace form
of self-forgiveness, intended to allow one to get on with ones life, might
preclude ones easily avoiding all guilt or self-hatred merely by noting It
was not my fault or even I did the right thing.102 Thus, this thoughtless
self-forgiveness puts us right back where the behavioral analysis placed
uswe forgive ourselves so easily that we fail even to acknowledge that
we have made a mistake. But a genuine self-forgiveness of the type
Murphy advocatesone that is accompanied with thoughtful repentance
and atonement103can provide support to assist with mistake realization.
If we do not learn to forgive ourselvesthe hard way, not the easy way
we will rarely be willing to recognize our mistakes and move on to
acknowledge and learn from them.
B. Systemic Facilitators
I think public defenders offices are generally more

accepting of mistake than prosecution offices.
*Former public defender
I think it is easier to make a mistake at a smaller firm

without being corrected, but at a big firm there is more
99 JEFFRIE G. MURPHY, GETTING EVENFORGIVENESS AND ITS LIMITS 59 (2003).

100 Id. at 60; see also JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 61
(1988) (providing an alternative definition of moral hatred); Michael J. A. Wohl & Kendra J.
McLaughlin, Self-Forgiveness: The Good, the Bad, and the Ugly, 8 SOC. & PERSONALITY PSYCHOL.
COMPASS 422, 423 (2014) ([W]hen a person acknowledges that they have behaved in a
manner that is inconsistent with their principles, they will typically feel a great deal of
negative emotions, such as guilt and shame.).
101 Wohl & McLaughlin, supra note 100, at 42425 (discussing studies involving
procrastination). Self-forgiveness may not always be helpful; for example, if a negative

behavior is ongoing or chronic, like smoking cigarettes, self-forgiveness may only maintain
the behavior. See id. at 425.
102 MURPHY, supra note 99, at 67, 71 (explaining that this has been described in forgiveness
literature as a pseudo self-forgiveness, where the wrongdoer forgives himself without

accepting full responsibility and with no appreciation of the gravity of his or her actions and
their consequences.); see Julie H. Hall & Frank D. Fincham, Self-Forgiveness: The Stepchild of
Forgiveness Research, 24 J. SOC. & CLINICAL PSYCHOL. 621, 628 (2005).
103 MURPHY, supra note 99, at 7072.
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supervision, so it is harder to get it wrong.

*Attorney in a twenty-lawyer firm
I was told on my first day on the job that 99% of mistakes

can be fixed if disclosed quickly.
*Attorney in a mid-size law firm
As a new attorney, I worked primarily with two

supervising attorneys. One was terrifying whenever
anything went wrongfor example, a typo in a brief, or if
we filed in the wrong countyso I would try to fix things
without telling him because it was easier.
*Attorney at firm with twelve attorneys
As discussed above, in law firms and workgroups, lawyers,

particularly new lawyers, may face significant hurdles to confessing error,
including embarrassment, fear of failure, assumption of economic risk,
including fear of job loss, and uncertainty about what to disclose and
whether disclosure is really necessary. New lawyers may be unsure of how
senior lawyers will view them after they learn of the mistake. Moreover,
they will be likely to believe they can fix whatever mistake they have
made, or somehow ensure that the mistake will not have a meaningful
impact. Many new attorneys are not comfortable with acknowledging
mistake in a straightforward manner and may feel entirely unsure of what
to say or how to explain their error. Indeed, they may be new to any
workplace environment, not just a law firm environment; thus, they may
lack the experience and skill necessary to communicate effectively about
their mistake and proposed solutions.
Moreover, the cognitive biases and behavioral tendencies that prevent
mistake recognition and acknowledgment are likely to be intensified in
the organizational setting, where all lawyers, and particularly new
lawyers, face unique challenges to understanding the impact of
unconscious cognitions.104 With regard to mistake in particular, firms need
to create an environment of mistake acceptance so lawyers understand that
it is safe to confess error.105 When lawyers feel that they can discuss
104 See Regan, Jr., supra note 14, at 948 (recognizing that the fragmentation of knowledge
and diffusion of responsibility that exists in many organizations prevents awareness of the
role of cognitive and behavioral tendencies in ethical decision making); see also OGrady, supra
note 2, at 680 (identifying unique organizational and situational challenges presented for the
new attorney as an ethical decision maker).
105 See Corrine Cooper, Mistake Management (Dont Bother Reading This if You Dont Make
Mistakes), 19 LAW PRAC. MGMT. 32, 3237 (1993).

mistakes openly and confidentially with their supervising attorneys or

with a trusted member of the firm, more mistakes will be detected and
ultimately reduced.106
As a starting point, a law firms general management model may
contribute importantly to whether attorneys at the firm understand and are
receptive to the firms ethical culture, including a culture of accepting and
learning from mistake. Professor Milton Regan Jr., for example, explores
the differences between a deterrence-oriented management model,
which tends to focus on specific prescriptions, monitoring, and audit
systems, and a values-oriented program, which has a broader focus on
an organizations values and individual identification and commitment to
those values.107 A values-orientation component results in employees
who see themselves as part of a cooperative venture that is attempting to
serve purposes with which [they] identif[y]; thus, employees would be
more inclined to overcome unconscious challenges and recognize,
acknowledge, and learn from mistake if learning from mistake is integral to
the firm culture.108 In addition, Professor William Simon describes a
quality-control management model and contrasts it with a risk
management program.109 Quality-control and risk management models
have very different goals and thus are likely to result in different
organizational structures and different cultures with regard to mistake. A
risk management emphasis, for example, is designed to protect the
institution in which the lawyer operates but not primarily to protect the
client, and the risk management firms focused institutional attention is
likely to result in less communication (hiding errors) from clients.110 The
quality-control model, on the other hand, strives for constant self-
106 See Edmondson, supra note 87, at 2425 (describing an experiment demonstrating that a
primary influence on detected error rates is unit members willingness to discuss mistakes
openly and shared perceptions of how consequential it is to make a mistake in the work
group or organization).
107 See Regan, Jr., supra note 14, at 97173.
108 Id. at 972; see infra notes 10810 and accompanying text (suggesting that employees who
appreciate and understand a firms focus on client services and transparency with clients will
respond, in turn, by being transparent themselves with firm supervisors). Similarly,
compliance professionals frequently contrast two organizational compliance program models:
command-and-control approaches, which emphasize rules, codes, and policies, and attempt
to deter misconduct principally through monitoring, detection, and punishment; and values-
based approaches, which respond to an employees values). See Scott Killingsworth, Modeling
the Message: Communicating Compliance Through Organizational Values and Culture, 25 GEO. J.
LEGAL ETHICS 962, 96673 (2012).
109 See William H. Simon, Where is the Quality Movement in Law Practice?, 2012 WISC. L.
REV. 387, 388 (2012).

110 See McMorrow, supra note 93, at 47374.
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improvement with an eye on client services; thus, it seeks to design

organizational structures and practices to reduce error and improve
performance. This suggests that a quality-control management program
is directly responsive to the impact of psychological cognitive dynamics in
decision-making, and that such a management model is designed to
address the importance of recognizing mistake and learning from
mistake.111 Indeed, mistake detection, reflection, understanding the root
cause of mistakes, and learning from mistakes are key components of the
quality-control management model.112 Thus, applying values-orientation
and quality-control insights to the practice of law is likely to result in firms
creating environments and cultures that insist on attorneys recognizing,
acknowledging, and ultimately learning from lawyering mistakes.113
As a matter of process and ethical infrastructure, firm leaders should
recognize that new attorneys may feel more comfortable talking through
their potential errors with someone outside their work group; thus, a firm
should make a conscientious effort to ensure an outlet for new attorneys to
receive guidance from someone unconnected to their work group.
Consider these testimonials:
111 See Simon, supra note 109, at 388 (citing Donald Langevoort as explaining that much
corporate noncompliance arises less from calculated deviance than from corporate and
emotional disabilities, and positing that the quality control movement responds with
organizational practices that are designed to mitigate the effects of these disabilities). Indeed,
a focus on concrete mistakes invites systemic reforms; the quality control movement sprang
from mistake-focused studies, such as Harvards 1991 study of medical error. See generally
Troyen A. Brennan et al., Incidence of Adverse Events and Negligence in Hospitalized Patients:
Results of the Harvard Medical Practice Study I, 324 NEW ENG. J. MED. 370 passim (1991); Lucian
L. Leape et al., The Nature of Adverse Events in Hospitalized Patients: Results of the Harvard
Medical Practice Study II, 324 NEW ENG. J. MED. 377 passim (1991). As Professor William Simon
has noted with regard to lawyering errors, there is no reason to believe that, if a [similar]
study could be done [in law practice], the results would be any less disturbing than those of
the medical studies. Simon, supra note 109, at 390.
112 See Simon, supra note 109, at 39297 (analyzing the four basic components of the quality
movementstandardized work, systematic error detection, peer review, and performance

measurementand noting that [a] key premise of the quality movement is that mistakes are
learning opportunities.).
113 See Langevoort, supra note 3 ([B]ehavioral ethics research is perfectly in synch with
compliance programs that seek to be values-based . . . rather than command and control.);
Linda K. Trevino et al., Managing Ethics and Legal Compliance: What Works and What Hurts, 41
CAL. MGMT. REV. 131 passim (1999) (providing a large scale survey examining the effects of
nine cultural components and concluding that values-based compliance approaches, which
include a commitment to ethics at the highest levels of the organization and an environment
that encourages open discussion of ethical issues, works better than command-and-control
approaches to secure employee commitment and obtain compliance goals).
As a new lawyer, I was working on a specialty project with

a limited number of hours and Westlaw was not free. I did
not focus on the expense of my work and burned through
my time on the project without coming up with an answer.
I went to talk about it with a partner at my firm who was
different from my supervisor, because I felt ashamed.
*Attorney at a medium-sized firm recalling mistake as
a new attorney
We have an ethics counsel at our firm. The ethics counsel is

a lawyer who advises attorneys in the firm on how to
proceed and who is called up to teach mistake prevention.
*Attorney at a general commercial litigation firm with
fifty lawyers
Many law firms, particularly large law firms, provide an ethics counsel
or an attorney who is available to consult confidentially with other
attorneys about matters concerning ethics or mistake.114 But many medium
or small firms may not have such systems in place, perhaps believing they
are too small for such a formality.115 Regardless of firm size, providing new
attorneys with a process or organizational system for discussing ethical
questions and exploring mistake sends a message to all attorneys about the
firms openness to learning from mistakes.116
In addition to ensuring that its lawyers have an outlet to discuss
mistakes, a firm can install other fairly simple communication systems
114 See Elizabeth Chambliss & David B. Wilkins, The Emerging Role of Ethics Advisors, General
Counsel, and Other Compliance Specialists in Large Law Firms, 44 ARIZ. L. REV. 559, 576 (2002);
Simon, supra note 109, at 392 ([L]aw firms usually have ethics committees and opinion
committees, and these committees seem to have increasingly more authority.).
115 A survey I conducted in Arizona involving attorneys with less than six years practice
experience suggests that many Arizona law firms do not have such a system in place, and that
large law firms generally have a formal ethics counsel or committee, while medium or small
firms do not. Catherine Gage OGrady, Behavioral Ethics and Arizonas Newest Attorneys: A
Summary of Data Received from Survey on Ethical Decision Making (Nov. 2014)
(unpublished survey) (on file with author); see Susan Saab Fortney, An Empirical Study of
Associate Satisfaction, Law Firm Culture, and the Effects of Billable Hour Requirements Part Two,
65 TEX. BUS. J. 74, 75 (2002) (finding that Texas associates want firms to recognize and reward
ethical conduct, and provide an ethics counsel or committee to assist firm attorneys who have
ethical questions or concerns).
116 See, e.g., Elizabeth Chambliss & David B. Wilkins, A New Framework for Law Firm
Discipline, 16 GEO. J. LEGAL ETHICS 335, 336 (2003) (proposing that the Model Rules require all
firms to designate one law firm partner as the compliance specialist to avoid Model Rule of
Professional Responsibility 5.1(a) concerns).
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designed to create a culture that recognizes the importance of ethical

awareness, including mistake recognition and acknowledgment. As Scott
Killingsworth recently noted, an ethical culture is created in ones
immediate work environment through salient and timely ethical
communications, which can profoundly influence behavior.117 With
respect to impacting decision making to prevent unethical behaviors or
mistakes, effective communications must be timed to arrive very close to
the decision to act, otherwise the ethical reminder will be forgotten or
ignored.118 With respect to sending communications to encourage mistake
recognition and acknowledgement, however, the timing of the
communication may be less critical because the mistake has theoretically
already been madethe goal of mistake-focused communications is to
create a culture that recognizes the reality of mistakes and reminds
attorneys that they will be supported if they speak up when they think
they have made a mistake.
For example, a partner at the Wiggin and Dana firm shared with me a
subset of e-mails he regularly sends to firm attorneys which he calls wit
and wisdom messagesthey are short, pithy, sometimes funny e-mails
about matters of ethics. The goal of the e-mails is not to teach firm
attorneys all the answers, but rather to encourage attorneys to recognize
issues, and to be committed to insuring that all such issues bubble up to the
Firm Ethics Committee.119 Many of the wit and wisdom messages I
reviewed specifically raised mistake recognition and acknowledgement
themes; for example, one email advises: We all recognize our obligation to
clients when mistakes occur, it remains our practice and policy, without
exception, that when you believe a mistake may have occurred in your
representation of a client, step one is to consult promptly with me or [other
117 Killingsworth, supra note 108, at 962 (noting that culture is about communication and
communication is the fundamental means by which we can build, transmit, or change an

organizational culture.). Killingsworth notes two key experiments that underscore the
importance of timely and salient ethical reminders: Dan Arielys experiment demonstrating
that participants who were asked to think about the Ten Commandments right before taking a
test were much less likely to cheat, and alternatively, Scott J. Reynolds experiment
demonstrating that people who believe that business is inherently moral will be far less
inclined to question the ethical implications of actions that feel like business as usual and far
more vulnerable to environmental messages to do what it takes to complete the business
action. See Mazar et al., supra note 26, at 63336; Scott J. Reynolds et al., Automatic Ethics: The
Effects of Implicit Assumptions and Contextual Cues on Moral Behavior, 95 J. APPLIED PSYCHOL.
752, 752 (2010).
118 Langevoort, supra note 3, at 15 (Behavioral ethics stresses the need to intervene close to
the time of the act or omission, but by no means after.).
119 E-mail from William H. Prout to Catherine Gage OGrady (Sept. 8, 2014, 12:03 MST) (on
file with author).

ethics counsel].120 While some of the e-mails imparted ethical guidance on

specific issues like conflict of interest, improvident e-mails, or writing
engagement letters, many of them simply reminded attorneys that they
should not attempt to fix mistakes or solve potential problems
themselves,121 and the messages underscored that lawyering mistakes will
be accepted by firm leaders, but an attorney staying quiet about a mistake
will not be.122 Thus, regular ethical reminders can effectively underscore the
importance of recognizing and acknowledging mistakes when they occur.
Firm leaders and supervising attorneys can also ensure that new
attorneys recognize mistakes they make by routinely engaging the new
attorney in reflection and assessment with a goal toward bringing a
mistake to light. An analysis of the overconfidence bias, discussed above,
suggests that new attorneys lack the knowledge to recognize on their own
that they have made a mistake. Instead, they likely need someone to
explain their error to them, which should include a clear skill-based
explanation of why their conduct was a mistake. Consider this testimonial:
In following up after a phone call with our expert witness,

I sent him a detailed letter and several articles (which I
thought he would find helpful). I did not realize I had
made a mistake until the senior litigation partner told me,
straight out, that I should not have done that because now
we would need to produce in discovery all the information
I sent and, in addition, our experts credibility would likely
be undermined at trial when the other side asked: What
120 E-mail from William H. Prout to firm attorneys (Mar. 14, 2013, 16:38 EST) (on file with
author).
121 See, e.g., E-mail from William H. Prout to firm attorneys (Oct. 6, 2009, 8:20 EST) (on file
with author) (The concept is that you dont sit by yourself trying to decide whether
something is truly a problem, or undertake to solve it yourself -- rather you consult with the
Firms loss prevention/conflicts and claims folks, in all cases, and we take it from there.).
Other e-mails advise similarly: [t]he way you [satisfy your obligation under the professional
liability policy to report any claim or circumstance] here is simple: you dont worry about
whether something falls within the definition of claim or circumstance; you dont analyze
unilaterally whether we may be at fault or what our disclosure obligations might be; and you
dont undertake to solve the problem by yourself. To the contrary, in all cases, you
immediately discuss any potential issue with a member of the Firms Ethics Committee. See,
e.g., E-mail from William H. Prout to firm attorneys (July 9, 2009, 11:20 EST) (on file with
author).
122 Prout described the Wiggin and Dana firm culture as one where no one pays a price for
raising an issue; conversely, the consequences for failing to raise an issue can be dire. E-mail
from William H. Prout to Catherine Gage OGrady (Sept. 8, 2014, 12:03 MST) (on file with
author).
5/11/2017
did the lawyers do to prepare you for your testimony?

This was a pretty big case for the firm, the partner was
upset with me, and I was really embarrassed because I had
no idea of the ramifications of sending those materials.
*Senior lawyer describing mistake made as a first-year
associate
The testimonial above portrays a new lawyer who lacked sufficient

knowledge of pre-trial and trial skills to realize she had made a mistake.
Although more studies are necessary, scholars analyzing data pertaining to
the overconfidence bias suggest that improving skill level will likely
improve self-insight ability and facilitate mistake recognition.123 Thus,
when supervising lawyers, firms, state bar educational programs, and law
schools concentrate on improving the new lawyers skill set and practice
readiness, it not only improves the lawyers knowledge and ability, but has
the added bonus of facilitating early mistake recognition and all the
benefits that follow.
Ultimately, however, the best way to ensure that new attorneys
recognize and learn from knowledge-based mistakes is for senior lawyers
to guide the new attorneys through reflection to the realization that they
erred or, if guided reflection does not result in awareness, simply to tell
them they got it wrong. As the testimonial above suggests, the new lawyer
may not have been able to learn from her knowledge-based mistake
without the supervising attorney bringing it to her attention. It may seem
obvious to suggest that supervising attorneys need to point out mistakes to
junior lawyers, yet supervising attorneys may not be adept at or
comfortable with pointing out error.124 Consider, for example, the differing
approaches the following supervising attorneys took when reacting to a
new attorneys mistake:
When my senior colleague shared with me his view on my

[mistakenly worded] e-mail, I was at first visibly upset. But
I later sent him an e-mail thanking him for his feedback.
*Municipal court judge describing experience as new
attorney
123 Ehrlinger et al., supra note 34, at 120.

124 David Dunning recently noted that a real sadness attaches to his overconfidence
findings in the realization that people are going to suffer for their mistakes but never know it
because the world will likely respond to them with polite silence. 585: In Defense of Ignorance
Transcript, THIS AM. LIFE (Apr. 22, 2016), http://www.thisamericanlife.org/radio-
archives/episode/585/transcript [https://perma.cc/B93K-TP6Q].
I submitted an opposition brief to a motion for summary

judgment to the supervising partner a few days late. I did
not think much of itI was just relieved to have it off my
plate. I became aware that I could have handled things
differently when, a few months later, the judge ruled in
our clients favor and the partner sent around a
congratulatory e-mail to those who had a hand in the
victory, but I was not on the list. I e-mailed the partner, a
little tongue-in-cheek, asking why I didnt get any
recognition for my effort. He then responded with a
lengthy, scathing e-mail detailing why I did not deserve
any praisemostly because I turned the motion
assignment in late. I set up a lunch with the partner to sit
down and discuss what happened, why he was upset, and
what I could have done differently.
*Attorney with six years of experience at large firm
Supervising attorneys who view mistakes as learning opportunities

will not be reluctant to reflect candidly upon a junior attorneys error with
them and help them understand the ramifications of the error.125 The
second testimonial above illustrates a senior attorney who did not bother to
take the time to explain his disappointment to a junior colleague, perhaps
out of frustration with the junior lawyers mistakethe cavalier
assumption that turning an assignment in a few days late was fine.126 A
supervising attorney who understands the over-confidence bias may be
more inclined to accept a young lawyers mistakes without anger or
frustration, and help the newer attorney learn from mistake.
Finally, research on the confirmation bias has determined that a
conscious, overt consideration of alternative views and disconfirming
evidence helps counter the effects of confirmation bias.127 This is familiar
territory in law school moot court programs, which routinely require
students to argue off brieftaking the opposing sides position in an oral
125 Of course, there are feedback techniques that many clinical law professors and
supervising attorneys find useful, such as starting with something positive to help the learner
have a positive frame of mind for receiving constructive criticism. See Nagesh Belludi, The
Compliment Sandwich Feedback Technique, with Examples, RIGHT ATTITUDES (Feb. 20, 2008),
http://www.rightattitudes.com/2008/02/20/sandwich-feedback-technique/
[https://perma.cc/KPG3-HYMU].
126 Perhaps surprisingly, it also illustrates the maturity of a junior attorney who followed
up on confusing messages from the senior lawyer and took it in his own hands to get feedback
so he could realize his mistake.
127 ROBBENNOLT & STERNLIGHT, supra note 14, at 16.
5/11/2017
argument.128 In a law firm environment, a systemic approach that invites or

requires lawyers to consider the other side or to consult with others who
hold different views will be most effective in combating confirmation bias
and thus potentially useful in promoting mistake recognition.
C. Apology as a Facilitator
A business transaction is just part of an ongoing

relationship between the parties, and that is why it is
important to be open with clients, and to disclose and fix
errors if they occur, because liability relates to failures of
transparency.
*Transactional practice attorney
I apologized to my supervising attorney when I told him

about my mistake, but we did not apologize to the client.
Instead, we framed it as more of a change in strategy
because of the rules, rather than saying we got it wrong.
*Attorney with five-years of experience in a large law
firm
Considering a role for a lawyers apology to clients or others for

mistakes made in the professional practice of law is generally unexplored
terrainin law, the focus has been primarily on the lawyers role in
encouraging clients to apologize, with little scholarly attention paid to the
lawyer acknowledging mistake or apologizing to a client for case related
error.129 In this sub-part, I consider the possibility that apology to clients
may result in benefits rarely considered by lawyers, and a firm ethic on
apology may serve effectively to create an environment that tackles the
behavioral constraints that impact attorney mistake recognition and
acknowledgment.
Undeniably, apologizing to a client for a lawyering mistake raises
unique concerns within the legal community. Lawyers have generally
128 See JAMES DIMITRI ET AL., THE MOOT COURT ADVISORS HANDBOOK: A GUIDE FOR LAW
STUDENTS, FACULTY, AND PRACTITIONERS 47 (2015) (arguing that off-brief arguments required
in moot court competitions help students develop professional judgment by forcing them to
consider and embrace both sides of a legal argument).
129 A few scholars have addressed lawyering error acknowledgment. See, e.g., Cooper, supra
note 19, at 174 (noting that little attention has been given to the lawyers duty to self-report
malpractice level mistakes to clients); Nancy J. Moore, Implications of Circle Chevrolet for
Attorney Malpractice and Attorney Ethics, 28 RUTGERS L.J. 57, 75 n.85 (1996) (suggesting that
clients of a lawyer, like patients of a physician, do not want to know every time the physician
has doubts or second thoughts about any aspect of some ongoing treatment . . .).
viewed apology as an admission that risks inviting litigation; thus, until

recently, lawyers have typically advised clients to avoid apologizing.130 Of
course, this view of apology as an admission against interest may be
reinforced if third-party malpractice insurance contracts specifically
prohibit the insured from voluntarily assuming liability.131 Significantly,
many states have contributed to encouraging apology by adopting
legislation that a partys apology cannot be used against them in court as
an admission against interest. In these states, a partys expressions of
sympathy or even a full acknowledgment of responsibility will not be
admissible in court.132 Ideally, of course, such shield laws and malpractice
insurance should serve to assure actors that they are protectedthat their
apologies will not be used against them in court and their mistakes will not
subject them to personal financial ruin.133 Attorneys will certainly not feel
free to confess error and learn from a mistake unless they fully appreciate
the fact that they are covered. Firms can assist by ensuring that all lawyers,
especially new lawyers, understand how the firm malpractice insurance
works to protect them.
1. General Benefits of Apology
Apology to a client is a delicate balance. On the one hand, I

want clients to have confidence in my competence. On the
other hand, I want them to know that I am a human being,
and that I am open to their suggestions about how their
130 See Robbennolt, supra note 71, at 465 (In the context of civil disputes, the conventional
wisdom among legal actors has been that an apology will be viewed as an admission of
responsibility and will lead to increased legal liabilityand accordingly that apologies ought
to be avoided.).
131 See Jonathan R. Cohen, Apology and Organizations: Exploring an Example from Medical
Practice, 27 FORDHAM URB. L.J. 1447, 1471 (2000) (looking at insurance in the medical field and
noting that while a hospital or doctor apology is not likely to void insurance coverage, such a
provision in the insurance contract may still have a chilling effect on the use of apology by an
injurer that carries third-party insurance.). Before a client is informed of a lawyering mistake,
it will likely be necessary to review and consider the firms malpractice insurance contract
provisions, including whether notice must be provided to the insurer or whether the insurer
needs to be consulted before a client is informed of a mistake.
132 Robbennolt, supra note 71, at 47071; see Robbennolt, supra note 69, at 1014 (contrasting
state statutes that protect apologetic expressions from admissibility with those that protect
only statements of sympathy and do not protect statements that acknowledge fault); Albert
W. Wu, Removing Insult From InjuryDisclosing Adverse Events, PSNET (Feb. 2006),
https://psnet.ahrq.gov/perspectives/perspective/18 [https://perma.cc/7QAU-JPN9] (noting
eleven states exclude expressions of sympathy from admissibility and six states exclude
expressions of sympathy and accountability from admissibility).
133 See generally, Sack, supra note 72.
5/11/2017
case should proceed. I do think theres a moment for

apology to improve trust.
*Plaintiffs firm employment law attorney in seventh
year of practice
Apologizing for mistakes can result in important psychological and

practical benefits, such as facilitating settlement and preserving an ongoing
relationship.134 Jonathan Cohen has written extensively on apology,
contending that apology has important benefits for clients, including
subtracting insult from the injury, preventing antagonistic behavior,
repairing a damaged relationship, and permitting serious settlement
negotiations, thus increasing the chance of a fair and more satisfying
negotiated settlement.135 In addition, apology is thought to reduce tension
and anger, facilitate a positive on-going relationship among those involved
and enhance the possibility for spiritual and psychological growth.136
Jennifer Robbennolts experiments in apology and legal settlement have
demonstrated that the type of apology is significant in settlement
negotiations. Her experiments show that a full responsibility-accepting
apology influenced the inclination to accept a settlement offer, while a
partial sympathy-accepting apology did not facilitate acceptance, and in
fact, only increased participants uncertainty about whether or not to
accept the offer.137 Moreover, a full apology decreased anger, minimized
damage to the relationship, decreased the likelihood that the wrongdoer
would be perceived as engaging in bad conduct, and increased
perceptions of moral character, regret, sympathy, forgiveness, and the
belief that the wrongdoer would be careful in the future.138
The medical field provides some interesting examples of the benefits of
apology. In healthcare, the results of extreme honesty and Im sorry
policies at hospitals suggest that quick acknowledgement to patients and
families of medical mistake accompanied by an apology produce
numerous benefits, including improved patient safety, improved
134 See, e.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009, 1014
1023 (1999) (examining the potential of client apology in civil lawsuits); Robbennolt, supra
note 71, at 463 (noting scholars who have suggested that lawyers should discuss apologies
with their clients more often than they do now.).
135 Cohen, supra note 134, at 101921.
136 Id.; see Robbennolt, supra note 71 (noting scholarly attention to benefits of apology).
137 See Robbennolt, supra note 71, at 491.
138 Id. at 48791 (noting that a full responsibility-accepting apology influenced ratings of
variables that underlie both the settlement decision and the ongoing relationship between
participants including anger, forgiveness, and moral character assessment, while a partial
apology had no impact at allit was the same as no apology).
relationships, faster settlement of claims, and decreased litigation costs.139

Such results have surprised many observers because they flatly contradict
the conventional wisdom that hospitals employing honesty policies would
be subjected to increased lawsuits. At the University of Michigan Health
System, for example, acknowledging medical mistake and apologizing to
patients is thought to have resulted in a cut to the malpractice insurance
cash reserves by 81%bringing such reserves down from $70 million to
$13 million.140 Moreover, data at the University of Michigan Health
Systems shows that malpractice claims fell from 121 in 2001 to sixty-one in
2006; open claims backlog went from 262 in 2001 to eighty-three in 2007;
the average time to process a claim fell from about twenty months in 2001
to eight months in 2007; costs per claim were halved; and insurance
reserves dropped by two-thirds from 2001 to 2007.141
139 The Veterans Administration hospital in Lexington, Kentucky was the first hospital to
adopt an extreme honesty policy and has been the subject of scholarly interest. See Cohen,
supra note 131, at 144748. Others hospitals have followed suit and similar policies are now in
place at the University of Michigan Health System, Johns Hopkins, Childrens Healthcare of
Atlanta, Bostons Dana Farber Cancer Institute, Boston Medical Center, University of Illinois,
Californias Stanford University Hospital, and Massachusetts Sturdy Memorial Hospital. See
Robbennolt, supra note 23, at 380; Rebekah Moan, Sorry Works in Malpractice, but Honesty and
Prevention are Better, PHYSICIANS PRAC. (Aug. 12, 2009),
http://www.physicianspractice.com/articles/%E2%80%98sorry%E2%80%99-works-
malpractice-honesty-and-prevention-are-better [https://perma.cc/5739-3PVH].
140 Myra Dembrow, Honesty and Apologizing Reduce Malpractice Suits, RENAL & UROLOGY
NEWS (Oct. 22, 2009), http://www.renalandurologynews.com/malpractice-news/honesty-and-

apologizing-reduce-malpractice-lawsuits/article/155992/ [https://perma.cc/QGG2-X8NE].
141 David N. Goodman, Saying Sorry Pays Off for U.S. Doctors, NBC NEWS (July 20, 2009,
3:05 PM), http://www.nbcnews.com/id/32011837/ns/health-health_care/t/saying-sorry-pays-
us-doctors/#.V3Ro4OYrKRs [https://perma.cc/674T-LNVM]. The results experienced at the VA
hospital in Lexington after implementing its extreme honesty policy are equally promising.
During the first seven years of the policy, when evaluated against thirty-five comparable VA
hospitals, the Lexington VA hospital was in the top 20% in terms of number of claims paid,
but it was among the lowest 25% with regard to total payments made to patients. Thus, with
its extreme honesty policy, it experienced an increase in the volume of claims, but a
decrease in total costs. Robbennolt, supra note 71. These results are described as
encouraging, but scholars have noted that they could be explained by other factors, such as
the unique characteristics of VA system, the patients served, and the legal status of providers
within that system. See generally Cohen, supra note 131 (describing the Lexington VA hospital
in detail and examining the concerns about extrapolation of the VA hospitals experience to
other hospitals, especially private, third-party insured hospitals); Mazor et al., supra note 90.
Not all scholars accept that hospital honesty policies will result in long-term financial benefits.
See Stephen E. Raper, No Role for Apology: Remedial Work and the Problem of Medical Injury, 11
YALE J. HEALTH POLY L. & ETHICS 267, 290 (2001); Goodman, supra note 141 (quoting Harvard
University Public Health Associate Professor as saying studies suggest about 181,000 people
are severely hurt each year as a result of mistakes at U.S. hospitals, but only about 30,000 file
5/11/2017
The lessons from medicines experience with prompt disclosure and

apology may well carry over in key respects to lawyering and lawyers.142
As in medicine, communication with the client is keyif a relationship of
trust is established from the outset, it helps the client accept a mistake
without spiraling the problem further.143 In addition, acknowledging and
apologizing to the client for a lawyering mistake can ensure that the client
maintains trust in the bulk of the work done on his or her case. In
medicine, for example, a patient, who learns about a medical error on his
or her own, will likely be upset that the doctor did not tell him or her, and
will naturally second guess the entire course of care recommended by the
doctor.144
Ultimately, lawyers, like health care professionals, have client
relationships that depend on a high degree of trust and intimacy; thus,
apologies may be just as relevant in the legal profession as they are in
health care.145 Certainly, not all mistakes are appropriate for discussion
with the client, and the client would not likely want to hear about a minor
slip-up that was quickly resolved with no consequences.146 Yet, mistakes
may occur that are not material and do not impact an outcome, but that
legal claims, suggesting they did not know they were victims of medical malpractice and
positing that the spread of the Im Sorry movement could cause malpractice costs to rise
from $5.8 billion to between $7 and $11.3 billion per year).
142 Cf. Cooper, supra note 19, at 20405 (noting medical centers new approach and
recognizing difficulties in applying approach to the legal malpractice arena if plaintiff is a
large corporation rather than an individual).
143 See id. at 204.
144 Jonathan Cohen provides a compelling example from one of his colleagues who had a
son with a critical illness caused by a metabolic disease. Cohens colleague was called to the
hospital, and told by the doctor that his son had slipped into a coma. The doctor stated that it
was likely caused by a health professional accidentally giving the boy an overdose of anti-
convulsant medication. The doctor apologized for the medical error. In commenting on the
physicians apology, Cohens colleague said, the fact that [the doctor] was honest gave us
greater confidence in his future evaluations and recommendations concerning my sons care.
But if he hadnt been honestif he had denied the mistake and I had somehow found out
laterI would have considered suing him because it would have raised doubt about my sons
entire course of care. Cohen, supra note 131, at 1459 n.51.
145 See Robbennolt, supra note 69, at 1009 (noting that apologies may be particularly
relevant in health care because doctors and patients are in a relationship that necessitates a
high degree of trust and intimacy.).
146 See Moore, supra note 129, at 74 (noting that the client may not benefit from learning
how the attorney might have made a mistake which might constitute negligence which might,
someday, result in harm which might then be remedied by a legal malpractice action.). As
noted earlier, a self-reporting duty likely arises if the lawyer makes a material mistake
one that could give rise to a malpractice action. See Cooper, supra note 19 (discussing self-
reporting duty).
nonetheless might be best disclosed to the client with an apology. For

example, in one of the testimonials noted above, a new attorney
miscounted a shareholder vote. The mistake was quickly realized and
corrected. Although it did not impact the outcome, it did undermine the
process, and gave critics and stakeholders reason to doubt the accuracy of
the law firms work. This is an example of a mistake that an attorney might
reasonably decide to acknowledge immediately to the client and apologize
for in a thoughtful and forthright manner. If nothing is said and the client
discovers the error independently, the client may have reason to doubt the
entirety of the law firms work on the matter.
In general, when used effectively, apology can usefully enhance client
communication and build trust. Nationwide, attorneys continue to be
criticized and disciplined for failing to communicate sufficiently with their
clients.147 Some techniques based on quality management models are
responsive to clients need for communication, which may include
communication about certain lawyering mistakes made on a case.148
Ultimately, apology studies suggest that effective apology can positively
impact client relationships in two ways: effective apology can build trust
with clients; and clients who trust their attorneys and believe that they will
be kept informed through the attorneys effective communications will
more readily accept and understand an apology for a lawyering mistake.
2. Apology and Firm Culture
I have seen younger lawyers make promises to clients and

fail to deliver, but I dont know whether they apologized
to the client or not. Approaches to communicating with
clients are very individualized.
147 McMorrow, supra note 93, at 462 (noting that 30% of disciplinary actions nationwide
dealt with issues of competency, diligence, and failure to communicate with the client, and
citing a 2000 nationwide study showing that poor communication with clients was the basis
for 14% of all disciplinary actions); Stephen E. Schemenauer, What Weve Got Here . . . Is a
Failure . . . To Communicate: A Statistical Analysis of the Nations Most Common Ethical Complaint,
30 HAMLINE L. REV. 629, 64647 (2007) (describing clients most common complaint
nationwide against their attorneys as a failure to communicate).
148 An attorney at Seyfarth Shaw, LLP, for example, described a component of the firms Six
Sigma quality control management system, noting that [f]or all cases, we use an extranet that
our clients can access that contains all the key documents in the cases in folders including, for
example, pleadings, correspondence, and legal research. E-mail from Mark Casciari to
Catherine Gage OGrady (May 18, 2016, 15:39 MST) (on file with author). Clients with access
to their files will likely have access to documents, such as pleadings and correspondence, that
indicate error, thus inviting attorneys to communicate with clients in advance of them
discovering error by reviewing their file.
5/11/2017
*General litigation attorney with nine years practice

experience
I have never heard of a firm having an apology policy.

*Former prosecutor, currently a judge
The ethical atmosphere of a law firm can have a direct influence on

the individual conduct of the firms attorneys.149 A law firms ethical
atmosphere or culture may be reflected in a number of organizational
decisions: the firms management system, for example, and its policies and
procedures, which Ted Schneyer dubbed the firms ethical infrastructure,
can have important impacts on firm lawyers.150 In large law firms,
attorneys are likely to be most influenced by the ethical culture of their
practice groups and departments.151 Although all lawyers behaviors are
shaped and influenced by the work environment, the impact of firm
culture is likely to be most powerful for the new attorney who is looking to
others to learn what is expected of him or her in the work place.152
With regard to mistake recognition and acknowledgement, an
organization that puts quality client outcomes first will likely value a firm
culture that allows recognizing, acknowledging, and learning from
mistakes to prevent them from repeating and impacting future clients.153 In
turn, employees who understand that their organization values ethical
transparency and learning from mistakes to enhance client outcomes will
be more inclined to recognize and acknowledge their own mistakes. Again,
the medical field provides guidance. With regard to quality client
outcomes, such as improving patient safety, proponents of extreme
honesty policies suggest that the conventional deny and defend
approach to medical mistake stifled transparency and prevented learning
149 MODEL RULES OF PROFL CONDUCT r. 5.1 cmt. 3 (AM. BAR ASSN 1989) ([T]he ethical
atmosphere of a firm can influence the conduct of its members.).

150 See Ted Schneyer, supra note 93, at 246; Ted Schneyer, Professional Discipline for Law
Firms?, 77 CORNELL L. REV. 1, 1011 (1991) (discussing the importance of a law firms ethical
infrastructure as cutting across particular lawyers and tasks); see also supra notes 10513
and accompanying text.
151 See REGAN, JR., supra note 89, at 42 (noting that, in a large law firm, lawyers respond to
the culture of their practice group more than to the firms general culture); Christine Parker &
Lyn Aitken, The Queensland Workplace Culture Check: Learning from Reflection on Ethics Inside
Law Firms, 24 GEO. J. LEGAL ETHICS 399, 42728 (2011) ([J]unior lawyers [are] most aware of
and sensitive to the ethical subculture of their own work team and supervising partner, rather
than the firm as a whole.).
152 See OGrady, supra note 2, at 68081.
153 See supra notes 10712 and accompanying text.
from medical mistake.154 In 1999, the Institute of Medicine found that

nearly 100,000 lives were being lost through medical error each year, and
some observers blame healthcares culture of secrecy and failure to learn
from medical error as key contributors.155 Indeed, when an organization, as
opposed to a single individual, acknowledges and proceeds to learn from a
mistake, the impact of learning from the mistake is substantially increased
by the organizations larger client base.156 Hospital honesty and patient
apology policies have contributed to an environment where health care
professionals understand that claims will be handled ethically and learning
from medical mistake to advance patient safety is the highest priority.157
Employees working within an organization that places a systemic
emphasis on mistake recognition and thoughtful client apology are more
likely to adopt the organizational value and feel comfortable recognizing
and acknowledging their own error.158 As Jonathan Cohen notes: When an
organization adopts the stance of assuming responsibility for its errors, its
members are likely to be more prompt in reporting errors, more honest in
154See Boothman et al., supra note 58, at 1516 (The medical community more often views
a complaint as a threat, not an opportunity to reach an understanding based on honesty and
openness.).
155 See id. at 16; see also INST. OF MED., TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM
1 (1999), http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/1999/To-Err-
is-Human/To%20Err%20is%20Human%201999%20%20report%20brief.pdf
[https://perma.cc/D6MX-PBMA] (At least 44,00 people, and perhaps as many as 98,000
people, die in hospitals each year as a result of medical errors that could have been prevented
. . .). Recently, scholars at Johns Hopkins analyzing scientific literature on medical error
declared medical mistake to be the third leading cause of death in the United States, right after
heart disease and cancer, and called for the Centers for Disease Control and Prevention to
change the way it collects annual national vital health statistics. Is Fatal Medical Error a Leading
Cause of Death?, PBS: NEWSHOUR (May 4, 2016, 6:25 PM), http://www.pbs.org/newshour/bb/is-
fatal-medical-error-a-leading-cause-of-death/ [https://perma.cc/E4QZ-TUU7]; Makary &
Daniel, supra note 16.
156 Cohen, supra note 131, at 1464 (Both individuals and organizations can learn from their
errors, but with organizations, the possibility of preventing future errors and lawsuits is much
greater.).
157 At the University of Michigan, safety measures put in place following the policy and as
a result of learning from medical mistake have included rolling out pulse oximetry across all
hospitals and developing a pulmonary embolism screening tool after a missed diagnosis. See
Richard C. Boothman et al., A Better Approach to Medical Malpractice Claims? The University of
Michigan Experience, 2 J. HEALTH & LIFE SCI. L. 125, 145 (2009). For more on University of
Michigan Health Systems policy, see generally id. at 13750 (providing a general overview of
the University of Michigans approach to medical errors).
158 See Cohen, supra note 131, at 146566 (Just as external denial may breed internal denial,
external responsibility may breed internal responsibility.).

5/11/2017
investigating them, and more willing to embrace reform.159 Thus, when an

organization regularly acknowledges and apologizes for its mistakes, it
implicitly [gives] its employees a message that, Its okay for you to be
open when you err, for we will be open with that information. We are not
going to hide it, so you need not either.160 As Donald Langevoort recently
noted, the tone at the top mattershow senior leadership interacts with
the ethics and compliance function, in terms of both frequency and
expression, will be noticed by employees.161 Modeling client transparency,
error acknowledgment, and, when appropriate, apology in firms and the
firms work groups is likely to have a direct impact on individual lawyer
behaviors, with special significance for new lawyers. Ultimately, an
effective policy on client apology has the potential to benefit client
relationships and contribute importantly to the firms culture, which in
turn may help confront the unconscious behavioral impacts that preclude
attorney mistake recognition and acknowledgment.
CONCLUSION
Mistakes happen. When they do, they sometimes loom below our
conscious awareness, unseen by us and unacknowledged to others. A
behavioral analysis of lawyering mistake explains why a lawyer may not
even recognize that she has made a mistake, and why, even if she does
recognize her mistake, she may fail to acknowledge it to others.
Understanding the behavioral dynamics that underlie mistake can assist
law firms and supervising attorneys in creating work environments that
encourage and facilitate mistake recognition and acknowledgment among
lawyers. This Article explored a behavioral theory of mistake and offers
some ideas to law firms based on these behavioral insights, including a role
for apology to clients, to ensure that lawyers recognize a mistake when
they make one, acknowledge it to others, and move forward to correct the
situation and learn from the mistake.
159 Id. at 1465.

160 Id.
161 See Langevoort, supra note 3, at 21.

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SYMPOSIUM

A Behavioral Approach to Lawyer

CATHERINE GAGE OGRADY*

to others becomes a critical consideration.1 For the lawyer, especially the

acknowledgement, where public acknowledgements for serious wrongdoings often go only as

2017 A Behavioral Approach to Lawyer Mistake and Apology 9

outside the conscious awareness of a legal decision maker,3 may produce

behavioral scholars who generally advocate embracing mistakes as learning opportunities.

contributing to an outcome by impacting decision-making and solidifying the outcome by

2017 A Behavioral Approach to Lawyer Mistake and Apology 11

instituting reforms based on such insights is likely clearer from a starting

this Article, I offer some observations, informed by behavioral

definitions of mistake, categorizing error types under three broad headingsplanning,

2017 A Behavioral Approach to Lawyer Mistake and Apology 13

mistakes that lend themselves to early detection and repair, significant

In the process of filing for asylum, I was supposed to send

As a young prosecutor, I was prosecuting a man for

I sent a response to a question about a contract to the

Recently, a young lawyer at our firm counted a

It didnt affect the outcome, but it was a contentious

As illustrated by these examples, lawyer mistakes cover a broad swath.

I. Mistake Recognition: A Behavioral Analysis

I was shocked to realize I had made the same mistake

A number of cognitive heuristics, situational dynamics, and behavioral

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A. Avoiding the Dread

We humans love to be rightit is ego-gratifying, imperative for

2017 A Behavioral Approach to Lawyer Mistake and Apology 17

The supervising attorneys want to know if youre in over

B. Overconfidence Bias and Nave Realism

Overconfidence bias suggests that [a]lmost all of us hold positive,

Outcomes, 16 PSYCHOL. PUB. POLY & L. 133, 133 (2010).

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that the overconfidence bias operates specifically with regard to ethical

are more honest, objective, and ethical than others).

Confirmation bias is the tendency to focus on information that

47 WM. & MARY L. REV. 1587, 1599 (2006).

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evidence in ways consistent with the named suspects guilt.51 Moreover,

Cognitive dissonance is an uncomfortable feelinga state of

ARONSON, supra note 1, at 13.

With regard to mistake recognition in law, the tension is likely to be

E. Characteristics and Context of Legal Mistake

The specific characteristics of a mistake affect our ability to recognize

it to self-justification and failure to recognize mistake).

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I responded to the Governments request for information

rely on our cognitive resources to form positive images, miss warning

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ROLES, RESPONSIBILITIES, AND REGULATION 1, 94 (Deborah L. Rhode ed., 2000); OGrady,

II. Mistake Acknowledgement

At my second work place, the incentive was strong not to

The environment at our firm is very encouraging when it

68 See infra notes 13941 and accompanying text.

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judge has noted that acknowledgement of error is rare among appellate

A. Rules and Guidelines Pertaining to Mistake Acknowledgment

In the medical field, professional rules, ethical guidelines, hospital

2008), http://www.nytimes.com/2008/05/18/us/18apology.html?_r=0 [https://perma.cc/5ZQA-

of Hospital Organizations requires the disclosure to patients of unanticipated outcomes, and

2017 A Behavioral Approach to Lawyer Mistake and Apology 29

B. Behavioral Impediments to Mistake Acknowledgement

Many of the behavioral and cognitive dynamics that make it difficult to