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.
Lawyer Watch 
This aspect of human behaviour really fascinates me. Our society’s tendency to deference to those higher up the chain making decisions means poor decision makers are protected from most consequences and when problems do arise they are practised in deflecting criticism, tending to blamestorm rather than admit a mistake. Fear of losing control perhaps. A Partner’s contact with ordinary people may also diminish, so his/her more powerful clients also tend towards self delusion/preservation. Promotion to these positions may also be based on self attraction so they tend to promote people with “perfect control” traits they like to see in themselves. Conversely, to see others flaws is often to have to recognise them in ourselves.
May also be one of the main causes of the credit crunch – no-one wanted to point out all the mistakes the big financiers were making who all believed that they were invincible and could do no wrong.
Food for thought. Perhaps the partners should get constant appraisals from their own staff as happens at a few more enlightened companies. Also regular involvement in pro bono or CAB advice work can be really grounding. Mistakes are obvious and high impact. Its about taking responsibility and not thinking about yourself at all – only the consequences to others. It takes a rather humble spirit to be aware of ones own capacity for failure however. I think humility is a character trait that is not cultivated these days particularly in highly competitive male dominated industries.
A good basic point. Who was it who said that X didn’t have 20 years of experience, but had merely had 1 year which they repeated 20 times? We all know of people who don’t learn, and this needs looking out for.
But does this mean that everybody, and not just the more junior members, in each firm/company/chambers should have somebody looking over their shoulders all the time? It may be equal, but is it sensible? Or pleasant? Or indeed productive?
Lawyers need to be adventurous, and bold, certainly sometimes. They need to look at bigger pictures and take advantage of matters that they feel from the small signals that come bacl to them from here and there. They can’t operate by always following the yellow brick road, and ticking all the boxes. They have to do things differently sometimes or no progress is made.
There are two sides to this. And there is enough box-ticking out there already in many peoples view. Do we need to raise an argument in favour of more?
Thanks – I can see how the argument might be manipulated towards a box ticking approach but it is not arguing for a box ticking approach.
No, I agree. But others will use it for that purpose. And although I appreciate intellectual curiosity, give them the chance?
DISASTER MYOPIA?
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As witnessed in the financial crisis, such performance is potentially catastrophic.
Herring and Wachter argue that two common heuristics combine to deliver situational blindness.
First is the rule of thumb by which busy decision-makers allocate their scarcest resource, managerial attention. If matters are not seen as meritorious they are not prioritised
Secondly senior managers tend to formulate subjective probabilities as to the likelihood of particular events occurring. Being increasingly ‘out of the loop’ will negatively skew their formulations
In combination these two heuristics cause “disaster myopia,” – the tendency over time to underestimate the probability of catastrophic failure