How to Cover for a Co-Counsel's Mistake
In the business world, covering for a coworker's mistake is something that doesn't get done unless there's a motivating factor, like friendship, or if the team's collective performance benefits each individual's compensation. So, you can expect that it may happen frequently until work friendships get too strained.
When lawyers co-counsel, if one attorney makes a mistake, it hurts the case. That means that co-counsel should be extra motivated to not let their co-counsel make mistakes, regardless of who is in the lead role. But when it happens, and it is always bound to happen, an attorney has three basic choices:
- You can throw your co-counsel under the bus.
- You can take the heat for your co-counsel.
- You can try to cover.
If you're going to go the third route, you can read on below for a few tips when covering for a co-counsel.
If you're going to try to get out of some trouble that a co-counsel got you into, don't lie. If it is even remotely plausible, you can attempt to carefully explain away almost anything as an accidental oversight or a clerical error. Read your judge, read your room, and paint the picture in a light most favorable.
Request Time to Investigate and Brief the Issue
If there's something unexplainable and the court, or a client, is confused, don't guess. Use some vague idiomatic obfuscation, like "Your honor, I shouldn't hazard to guess." Then, request a recess (or some time) to make a phone call, or an extension with a briefing schedule, before the court takes the matter under submission.
Don't Hide the Mistake
While you don't want to highlight the mistake, if you can fix it by filing an errata, or sending an email or letter, you might want to consider doing so, particularly if it was a big mistake. Unless it requires extraordinarily rushed immediate attention, or you're just a take charge kind of lead counsel, you should reach out to your co-counsel and ask that they fix it. If they refuse, you should explain that you will fix it, unless they can provide you with a good reason not to.
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