Errors and Omissions

30 Jun 23

Errors and Omissions, est. 2017, is a query dedicated to anonymous descriptions of fuck-ups or near fuck-ups, as well as valuable advice.

Some excerpts:

I find that most mistakes I make (drafting errors, wrong advice, etc) are usually the product of stress engendered by a client demanding instant answers or results, or by a desire on my part to give a quick answer in order to appear hyper-responsive. When I'm allowed to take my time, to deliberate carefully and research thoroughly, mistakes are much less likely. Since I know this about myself, I generally try to plead for extra time, notwithstanding the supposed urgency of the client's demands. 

Younger lawyers are especially susceptible to this problem IMO, but even the most experienced lawyers can fall into this trap.


A few years ago, I was handling a pre-M&A, due diligence NDA. I neglected to insert an employee no-poaching clause. The buyer's counsel would most likely have rejected it but it should have been asked at least. Luckily no employees were ever poached and the deal went through.


Gross simplification of events: I once represented a buyer of a trademark. I made clear in my engagement letter that I'm not responsible for calendaring significant dates or to assess the value of the trademark being purchased. I drafted the purchase agreement and negotiated it. The deal closed.

Seven months later, the client calls, complaining that the trademark she just bought has been cancelled due to failure to file the necessary paperwork, and that I should have warned her about that.

She never would have been able to prove the requisite actual use in commerce, but we ended up settling nevertheless.

The lesson: client expectations supersede engagement letter boilerplate sometimes.