What happens when lawyers make mistakes?
Mistakes. Also known as errors, blunders or, in my best legalese, boo-boos. They often keep us lawyers busy and sometimes even worried. What are they all about?
When I think of mistakes in history, what comes to mind is the Leaning Tower of Pisa. What amazes me is that it took ages to construct, and surely the architect should have noticed that it was not rising according to plan. None of us would allow our houses to be built four or so degrees off perpendicular without at least emailing the builder saying, “I don’t know. When you get a chance, please drop by and have a look.”
I Googled to see if anybody ever took legal action regarding the tower, but saw nothing even remotely resembling Municipality of Pisa v. The Tower Professionals.
My own history of error dates back to when I was 10 years old, when I accidentally dropped my younger brother while playfully performing an over-the-shoulder wrestling airplane spin. This aerodynamic maneuver gone wrong with my little brother did not sit well with my dad. He was not consoled by my eloquent pleas that it was just an accident. I won’t go into details of the punishment outcome other than disclosing I should have been offered a cigarette and a blindfold.
Which brings me to negligence. Common law was not overly kind to injured parties until the 1932 landmark House of Lords British appeals court case Donoghue v. Stevenson. In short, May Donoghue suffered physical injury and nervous shock after finding a decomposed snail in her ginger beer while in a pub. She sued the manufacturer, Stevenson, and her claim was successful even though there was no privity of contract. The court found the manufacturer owed a duty of care not to harm its neighbour (“neighbour” spelled correctly, according to Canadians).
I imagine this ruling also acted as a deterrent to other manufacturers to not be sloppy, because I have never come across another case of a decomposed snail in a bottle of ginger beer in a pub.
Liability in negligence, however, is not generally strict. If there is anything any law student remembers from law school, it’s these two words: reasonably foreseeable. When trying to determine whether a party was negligent, the iconic phrase the British like to use is whether he acted like the “reasonable man on the Clapham Street omnibus.” Perhaps American law students call him the reasonable man on the Powell-Hyde cable car. Or the IRT in New York City. Or the El in Chicago. I could go on, but I am sure you get the idea.
This hypothetical person is supposed to be your Mr. Average. He is not overly cautious, yet he is prudent enough to go out after a bout of freezing rain and dump a shovel of salt on his frosty walk so that reasonable people visiting him later don’t slip and fall and break a reasonable leg.
The question is what he (or she) would have done under the circumstances.
But it is not always easy to admit to screwing up. While in practice, I often heard clients involved in motor vehicle accidents plead, “I looked both ways before entering the intersection. The coast was clear, and suddenly, bang! This guy came out of nowhere.”
I usually asked innocently, “But surely he had to come out of somewhere?”
“No, he wasn’t there when I looked. I tell you, he just came out of nowhere,” replied he with the innocence of Forrest Gump.
Because I experienced a number of similar complaints over the years, I have to ask where, indeed, these scoundrels came from just when the innocent driver felt it was safe to proceed, only to have his car totaled by this sudden force. Is there a nowhere? I have given this matter some thought.
I looked at a dictionary, and it defined nowhere as “a place that does not exist.”
At least there is an element of certainty in that definition.
Unfortunately, we all make mistakes. When lawyers make them big time, it’s called malpractice. I would say this term is a bit harsh; it sounds like Maleficent, that evil queen who did a number on Sleeping Beauty. A lawyer missing a deadline is nothing compared to booby-trapping a palace with a dangerous spinning wheel.
And how do lawyers react when we drop the ball? I once arrived at a court hearing at 9:55 thinking the start time was 10:00. The judge clamored that it was scheduled for 9:00. I responded with, “I’m sorry, sir.” But he was not too forgiving, saying, “An apology is just a social crutch.” Fortunately, after raking me over the coals first, he adjourned my hearing. I was thinking about what else I could have told him to express my regret. I doubt it would have helped to say, “It was an honest mistake,” or “Oops” or certainly not “Make no mistake about it. I thought I was 5 minutes early.”
Lawyers in Ontario (and presumably across the planet) carry mandatory errors and omissions—aka E&O—insurance. For some reason, that term reminds me of a Monopoly railroad. But the price is a lot higher than $50 if you ever land there—a $6,000 deductible, plus additional annual penalties. I’d rather take a ride on that Powell-Hyde cable car.
Even judges make mistakes. That’s where the appeal courts come in. Our notices of appeal read something like:
1. The learned trial judge erred in that he …
2. The learned trial judge also erred in that he …
3. The learned trial judge further erred in that he …
Judges are human. I don’t know about you, but after this appeal I’d hate to plead another case before this learned trial judge.
We all make mistakes sooner or later. I am reminiscing. Had I known as a kid what I know now, I wonder if I could have gotten off scot-free if I had told my dad the airplane spin with my brother would have been approved by that gentleman on the Clapham Street omnibus.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com, and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.