A Behavioral Approach to Lawyer Mistake and Apology
46 Pages Posted: 6 Oct 2016 Last revised: 15 Aug 2017
Date Written: February 21, 2017
The Article explores the social psychology behavioral principles 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 ourselves. Once a mistake is fully recognized, acknowledgement of the mistake to others becomes a critical consideration. For the lawyer, especially the new lawyer, mistake acknowledgment often means a difficult discussion with senior lawyers and even clients. This Article explores mistake acknowledgement and considers the role of apology to clients for lawyering mistakes. Although lawyers are increasingly advising their clients to apologize to an opposing party in a dispute, often to facilitate settlement, lawyers are generally not considering the role of apology as it applies to them and their professional work. This Article opens up that topic, primarily by exploring the increasing use of apology in the medical field and suggesting that a role for apology exists in the professional practice of law as well as the professional practice of medicine.
Keywords: Behavioral Legal Ethics, Professional Responsibility, Mistake, Behavioral Analysis
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