Originally published in Law 360, March 12, 2018, 4:05 PM EDT
Before he went on to be showrunner for Chicago P.D. and Law & Order SUV, television producer and former lawyer Rick Eid created a short-lived web series called “Living the Dream,” a caustic take on law firm life. Episode 3 centers on the protagonist Nick’s life-changing experience finding a minor typo. His sharp eye propels him to superstardom within his firm. But, sadly, this professional victory doesn’t win him love. After he regales a blind date with a blow-by-blow account of finding the one-share discrepancy on page 82, she bolts for the exit.
Whatever damage it might do to their dating prospects, many lawyers embrace fastidiousness as a professional ethos. But perfectionism has not led to perfection. My company’s area of interest is email-related mistakes. Some of our best publicity comes from semi-regular stories of lawyers, often senior partners at prestigious firms, accidentally forwarding confidential documents to a journalist. And the stories that are made public, mistakes by senior lawyers entrusted by their firms to communicate with the press on high-profile cases are a tiny sliver of these sorts of errors. If you look for them, you’ll find that legal blunders actually are all around.
The prevalence of mistakes in legal work wouldn’t surprise experts in human error. Psychologists and systems designers have for decades studied errors and accidents in fields like medicine, aviation and construction, and have found certain personal risk factors that make mistakes more likely. The factors they’ve identified — depression, heavy drinking, overwork and lack of sleep — read like an American Bar Association report on the state of the legal profession:
· Depression: according to a Johns Hopkins study, lawyers were the most depressed of the one hundred types of workers studied.
· Heavy drinking: a recent study found that lawyers’ rate of problematic drinking was almost double the rate of other highly educated workers.
· Overwork: while the question of how much work is “too much” is controversial among lawyers, many find gallows humor in the ABA’s 1958 recommendation that there are at most 1,300 billable hours in a year.
· Lack of sleep: a 2012 review of the Census Bureau’s National Health Interview Survey found that lawyers were the second most sleep-deprived type of workers (after home health aides).
Given the pressures lawyers face, you might think a perfectionist attitude is necessary, almost heroic. And it’s true that calling out mistakes is important. One study found that if it is expressed moderately, showing what psychologists call “negative emotionality” toward errors can help people learn not to repeat them. But there is a nuance here that lawyers, for all their fastidiousness, often miss. If exacting standards and frank feedback are good, a self-image based on perfectionism, for the individual or firm culture, can be disastrous.
Much of the case against perfectionism comes from studies of the medical profession. James Reason, a renown scholar of human error, writes ““Health care training, particularly that of doctors, is predicated on a belief in trained perfectibility. After a very long, arduous and expensive education, you are expected to get it right. The consequence is that medical errors are marginalized and stigmatized. They are, by and large … equated to incompetence.” This “belief in trained perfectibility” taints the legal profession much as it does medicine. And in law as well as medicine, it creates some perverse incentives.
One consequence of conflating perfectionism with professional competence is obvious: lawyers are tempted to hide their errors. The legal profession is certainly aware of this tendency: google “lawyer cover up mistake” and you’ll find blogs and bar journals expounding variations on the theme that the cover-up is worse than the crime. And there is evidence that cover-ups are a real problem. In his article about learning from mistakes in legal clinical education, Suffolk Law School professor William Berman points out that state bar ethics committees frequently discipline lawyers for covering up mistakes.
More subtly, the same tendency that leads lawyers to cover up mistakes can cause them to avoid confronting an admitted mistake’s root causes. When human error is viewed as evidence of a character flaw, it seems both unnecessary and uncouth to examine it closely. Mistakes are the unspoken demerits on a lawyer’s professional ledger; when the ledger dips into the red, the lawyer is unloaded like a bad investment. In his article “The Quality Movement in Law," William Simon recounts what one consultant for liability insurers told him: “[W]hen he visits a firm where serious professional failure has occurred, the most common response he hears is, ‘We had a problem, but we got rid of him.’”
But by focusing on individual fault, law firms and lawyers fail to identify patterns of errors and miss opportunities to develop better processes for avoiding them. By obscuring the question of what caused an error and hamstringing attempts to find an answer, perfectionism impairs learning and thwarts efforts to improve. In other words, perfect isn’t just the enemy of good, it’s the enemy of better.
It would be too pat to identify perfectionism as an evil without understanding why lawyers might embrace it. Again, the experience of the medical profession gives us a clue. Like lawyers, doctors have traditionally resisted attempts to hamper their professional autonomy. Surgeon and writer Atul Gawande observed this dynamic when hospitals attempted to adopt a safety checklist for surgeries. Doctors often put up the most resistance: although using the checklist had been shown to improve medical outcomes, many were offended by the suggestion that an M.D. would need one.
As with medicine, autonomy is a key to the legal professional’s prestige and the outward demonstration of competence is key to maintaining autonomy. Law firm management accustomed to clichés about “herding cats” will notice a parallel. Attempts to reduce error rates by establishing formal processes or investigating the circumstances that led to a mistake can be seen as restricting professional autonomy.
Of course, concerns about improving quality and avoiding errors aren’t the only challenges to lawyers’ professional autonomy. The legal profession must contend with economic and technological disruptions, which also infringe on what William Simon calls the “solitary and ineffable nature of professional work.” Given the depth of these changes, it will probably be a long time before lawyers reach consensus on a new professional self-image.
In the meantime, we see often disconnected experiments. A few firms have embraced the sorts of quality management techniques used in other industries. Seyfarth Shaw’s commitment to “Lean Six Sigma” continuous improvement process management is now almost 10 years old and remains a key marketing point for the firm. English legal giant Clifford Chance established a “continuous improvement team,” also using lean six sigma principles. The Clifford Chance team’s stated goal is to adapt these principles to nonstandard, “high-end” legal work, the kind seen as most resistant to process improvement.
The growth of interest in mindfulness, reflected in the growth of groups like the Chicago Bar Association’s Mindfulness and the Law Committee and the Dade County Bar Association and the Federal Bar Association’s South Florida Mindfulness and Law Joint Task, suggests another approach to easing perfectionist tendencies. While mindfulness practices are often most closely associated with goals like stress reduction and focus, many of these programs also emphasize “self-compassion” and “perspective taking.” They thus confront attitudes that conflate blame and anxiety with commitment to excellence.
Finally, a growing number of lawyers are seeing opportunities to improve lawyers’ workflow through technology. Legally trained tech entrepreneurs see opportunities to meet the practicing lawyer half-way, using technology to improve contract drafting, matter management or email communications while maintaining the professional’s capacity to discretion and judgment.
Whether these efforts will help lawyers give up harmful perfectionism remains to be seen. But if lawyers can leave perfectionism behind, they might improve their performance as well as their love lives.