Jimmy Hendrix fans can click away now. This is, as ever, a post about lawyers and it is not about drugs. It is about whether and how lawyers learn from experience. It’s prompted by this post. These paragraphs caught my eye about whether and how we learn from our mistakes:
1. People who think that intelligence is malleable — that we get really good at something by dedicated practicing, not innate brilliance — pay more attention to mistakes. People who think that intelligence is fixed — you’re either good at something or you’re not – pay less attention to, and are less likely to learn from, mistakes.
2. The doctors who were most experienced were least likely to pay attention to and learn from mistakes, and more likely to show a confirmation bias. They trusted their judgment. Had the simulation been real, this would have had disastrous consequence for their patients. Because they didn’t learn from errors, the most experienced doctors ended up using the wrong criteria to make prescription choices.
The lesson of these studies? When you make a mistake or receive critical feedback, don’t panic. Think of it as an opportunity for learning, and remember that the process of “failing” — when you’re willing to pay attention — is often what leads to the greatest successes.
This reminded me of my youth when a then Met Commissioner said, “Experience is learning to make the same mistakes with greater and greater confidence.” (I think it was Sir Peter Marks). It got me thinking about how and when lawyers get to learn from their mistakes. We might argue there are lots of opportunities to learn from mistakes. Litigation is of course combative – opponents give you ‘feedback’ when mistakes are made but cases are often settled and errors can become part of the normal dynamic of case management. Advocacy may give clearer examples of ‘mistakes’ but then it is easy (isn’t it?) to put down a loss to judicial idiosyncrasies; a witness going off reservation; or less than straightforward clients. Because much of law is socially constructed: there’s a lot of discretion and an awful lot of variation can be put down to ‘different facts’. Similarly, particularly once a lawyer gets past their early years , I suspect feedback loops for lawyers are pretty poor. It may even be that an absence of such feedback loops is behind partners in well-regarded firms making, what appear to me at least to be, rather serious or obvious ethical mistakes. When law and facts are, with good lawyers, inherently malleable – and their judgements, particularly on ethical mattes, remains largely unscrutinised until it is too late – there is the danger of sometimes spectacular collapse. I wonder do firms have robust and meaningful systems for checking and feeding back on quality and ethical concerns once lawyers get beyond the early years. Without them, experience may lead to a kind of naive self-belief. Some lawyers may have been experienced but become less able as a result; some may come to regard themselves as super-human or untouchable.