How to Navigate Legal Mistakes with Integrity and Transparency

Episode Notes

Transcript

Rocky Dhir:

Hi, and welcome to the State Bar of Texas podcast at the State Bar annual meeting in June, 2024. I was delighted that the program finally included some real life advice. There was in print, what to do when you screw up and how to get a kidney, this promise to be the best talk on marriage and child rearing ever. But it turned out to be a talk on ethics, legal ethics, boring, right? I mean, well actually no. It did turn out to be one of the best talks ever for potentially saving your legal career. I was left with questions of course afterwards, deep important questions, and the speaker was bombarded with people wanting to talk to him afterwards. You know what I’m talking about, right? The ones who get into an extended conversation only to devolve into exchanges of war stories. Yeah, exactly that. So I decided to play dirty. I used gorilla tactics. I invited the speaker, Scott Skelton onto the podcast to get some of those questions answered. So here he is with us today, a founding member of Skelton Slusher Barnhill Watkins Wells. Their receptionist has got to be a total try saying that real fast. He’s renowned as a toxic tort lawyer and he’s here with us today. Let’s dig into this with Scott Skelton. Scott, welcome.

Scott Skelton:

Thanks. I appreciate you having me on.

Rocky Dhir:

Absolutely. First of all, what made you decide on this topic? You honed in on ethics. Did you lose a bet and have to do an ethics CLE or was there something more to this?

Scott Skelton:

No, no. I’m on the law practice management committee of theBar and we were brainstorming topics and I threw this one out and everybody thought that would be great.

Rocky Dhir:

So you did this to yourself?

Scott Skelton:

I did. I did it to myself

Rocky Dhir:

In this talk. What’s interesting is you kind of tell lawyers, look, you got to be honest upfront when a mistake occurs, and what I enjoyed was that you’re kind of acknowledging upfront that, hey, we all make mistakes. Everybody screws up, nobody’s perfect, but what kinds of mistakes are we talking about here? I mean, there’s many little mistakes that occur in law practice, just little things, but what are the mistakes that you’re most concerned about with your talk?

Scott Skelton:

Well, I think it’s the mistakes that can’t be fixed that I’m talking about. Those are the ones that you’ve got to have honest direct conversations with your client about.

Rocky Dhir:

Maybe walk us through a step-by-step. So let’s say we notice a mistake, say a missed deadline, and I think that’s one of the examples you gave. There might be an appellate filing deadline or there might be a statute of limitations. So what happens next? You figure that out and you get that sinking feeling in your stomach that you just miss something. What do you say lawyers do right after that? As soon as that happens,

Scott Skelton:

I say, go talk to your best friend partners and brainstorm the idea because sometimes you haven’t made a mistake and I tell that story in the talk, but the next thing you have to do is you have to clearly communicate to your client that you’ve made a mistake and then give them advice on what they need to do next.

Rocky Dhir:

Now said that story that you gave in the talk, I remember the story, but could you maybe for the listeners who haven’t heard it, could you tell us what the story was?

Scott Skelton:

Yeah, so when I came to the law firm a long time ago, it was known as Leski corns Hallmark Roper and Hicks, which is a mouthful as well.

Rocky Dhir:

The receptionist.

Scott Skelton:

Yeah, everything gets shortened. But yes, I was a young lawyer. I was doing entrance defense work and I was working for Paul White. Paul White eventually became the district judge in Angelina County, the one 59th, and he served just one of the greatest judges in Texas, in my opinion. He served a long time, but at that time he was my mentor, and so I had a case where I needed to sue the United States government for a tree that fell on a camper that an insurance company had to pay for exciting work, right?

Rocky Dhir:

Oh, this is huge.

Scott Skelton:

Yeah. So guess what happened to that file? It set on my credenza for months and months and months. One day I picked it up and I was convinced, absolutely convinced that I had missed the statute of limitations to soThe the United States government, which I didn’t think was going to be a very good thing for my career, and I didn’t think that the US government was just going to waive a statute of limitations defense. So I sat there sweating for minutes and all of your instincts kick in. What do we do with the file? Shred it, put it back in the desk, ignore it. Good sense. Came over me and I picked up the file and I walked into Paul White’s office and the words that I said to him were, I think I’ve committed malpractice. And I’ll never forget what he said because I think it’s a lesson to lawyers who are mentors and who are training associates.

He said, bring the file over here. Let’s take a look at it together. Those were the first words and they were very calming words. And after he looked at it, a much more senior lawyer at the time, much more experienced, knew the law. He determined that I did not miss the statute of limitations. So sometimes when you make a mistake or thank you made a mistake, the best thing is to get some help and make sure you actually did make a mistake. And I’ll tell you why this is important for the young lawyers or any lawyer is your instinct is to not go tell your senior partner that you’ve made a mistake.

Rocky Dhir:

Sure, it’s embarrassing.

Scott Skelton:

Yeah, it’s embarrassing. It’s the best thing I did because sure enough I didn’t, and I think I gained some credibility with him as well because he knew I was going to be honest with him regardless of the circumstances. It’s a really good lesson to if you think you’ve made a mistake, go get some help.

Rocky Dhir:

In this case though, you had help readily down the hall. There was somebody right there. What about solo practitioners? I mean, if you’re out on your own and you’re kind of a lone wolf, who do you turn to and how do you kind of get that second opinion on what you did? Is it just another lawyer you trust and know? Then there’s issues with that too. Sometimes I would imagine

Scott Skelton:

I’ve never practiced in a solo practice. I’ve been fortunate to be in a firm my entire career, but what I suspect, because I have lots of friends who do that and I have lots of friends who are lawyers who call me up and say, can you think this through with me? What do you think about this situation? So I think everybody’s got to have a group of people around them that when the chips are down or when you’re worried about something, you’ve got to call.

Rocky Dhir:

One of the things that we do need to talk about is the process of coming clean and kind of how to get around it. Before we do that, we’re going to take a quick break. We’re going to hear from one of our sponsors, and then when we come back, Scott is going to walk us through what coming clean means. So Scott, stay tuned and all of you guys listen up. We’ve got a lot more ahead. We’ll be right back. Alright, we are back with Scott Skelton talking about what to do when you screw up. We’ve all had those moments and we don’t always like to talk about ’em, but it’s important and we’re going to talk about them now. So Scott, let’s talk about what happens when a lawyer comes clean versus when they try to cover up or they try to due to embarrassment or just due to ego, whatever it is. If a lawyer comes clean up front and tells their client, Hey, I messed up your case. I did in fact commit malpractice because your story was it turns out you didn’t commit malpractice, you were actually okay, but if you do commit malpractice and you come clean, can you walk us through the differences between doing that versus trying to hedge your bets and maybe hope things go the other way?

Scott Skelton:

I told you the story about Paul White when I didn’t make a mistake, but I was a part of a case in our firm probably 10 or 15 years ago where we did make a mistake. The mistake we made was we missed an appellate deadline. So I had been fortunate enough to have either watched or read some material on what you do and the first thing you have to do is you have to realize you have a conflict of interest at that point because your interest and your client’s interest have just diverged and your client most likely has a claim against you and you’ve got to actually inform them of the fact that they have a claim against you and that you’re in a conflicted situation. So that is the first thing.

Rocky Dhir:

Do you have to withdraw from representation at that point or what happens?

Scott Skelton:

You might have to, but in my case I did not. In the case that involved my firm, when we missed it, we wrote a very extensive letter, which is in my state bar talk. In the papers that I presented, we’ve changed the names just to make it a little less.

Rocky Dhir:

You turned into Bufort T Justice, if I remember correctly, yes.

Scott Skelton:

Right

Rocky Dhir:

From smoking the bandit for those of you two young to remember,

Scott Skelton:

Right? So what you have to do is you have to write a letter and you have to say what you did and you have to tell them what their options are. And in my opinion, the best course of action is to tell them that they’ve got to go seek to let them know what option to choose because you can’t tell ’em what to do. And in the case that we had, it was a client that I had multiple matters for. The mistake was made and we did just what I said. The client continued with the representation that we were providing and we were handling a case that actually went up to the fifth circuit, which I argued and we prevailed, and what we did is we just did a little horse trading and when that fee came in, we paid them extra dollars on the case that we had not done very well with and missed the deadline, but that was all done with them being represented by another lawyer to make those decisions. If that all makes sense,

Rocky Dhir:

It does. The question that hits me, and this is one of the things I wanted to ask you about at the state bar, at the state bar annual meeting, there are lawyers out there who would say, Scott, you’re very lucky that you’ve got other lawyers you’re practicing with. Probably fortunate to have a good malpractice carrier who can cover you. You’re also very fortunate to have the types of clients that are hiring you on multiple engagements, and so you’ve got the luxury of being able to horse trade as you put it. What do you do if you’re representing somebody where you can’t horse trade? Let’s say you don’t have malpractice coverage and now you’re covering it all on your own. There’s a certain extent to which a lot of lawyers might understandably, maybe not correctly, but they would understandably want to take the opposite route and cover up what happened and blame something else for the lapses that occurred. So could you address that for a second? The whole you’re a lucky lawyer and some of us are not so lucky.

Scott Skelton:

I do feel fortunate to have been in the environment that I’ve been in, but I don’t think that the environment changes the answer to the question. And I don’t think lawyers who are solo have any different instincts than lawyers who are in big firms because I’ve seen big firm lawyers handle this poorly as well. And I think the answer is go ahead and take your medicine, be honest and transparent and tell the client what you’ve done and tell them to get advice because if you don’t, the ramifications are going to be so much worse, then you’re going to have the potentials for a suit against you that includes other things like fraud or DTPA claims. And so it just gets worse and human instinct is that we just don’t want to tell people we’ve messed up, especially if you’re a type A lawyer and you have a lot of pride and your reputation is important, it’s just very hard to do and you just have to do it.

Rocky Dhir:

The letter you talked about where you laid out everything, it sounds like a mea culpa type letter, Hey, this is what we did, we screwed up and now we got to fix this. What strikes me is that that is the type of letter that we would never tell our clients to write to an opposing party. Most lawyers, I can’t speak for everybody, but most lawyers would say, first of all, don’t apologize because an admission of wrongdoing and certainly don’t put that in writing. If you’re going to put it in writing, don’t sign your name to it. And you’ve kind of told us to do all three of those things, so I’m sure you’ve thought of this, but why would we do something different here than what we would advise our clients to do if they came to us and said, Hey, I screwed up in another area.

Scott Skelton:

Well, I think the simple answer is that our rules of professional responsibility require it and we’re held to a different standard than our clients because we have a license issued by the Supreme Court and we get to practice law in the state of Texas, and so we have to follow these rules and so we have a code of conduct that tells us what we have to do and we need to follow it. That’s the simple answer. I think there’s another answer that goes along with it and I think it builds your reputation for honesty and trustworthiness. I think it builds your reputation with your clients. I think it builds your reputation with theBar. I also think that as with doctors, when doctors make a mistake, studies show if they admit it and they tell the patients about it, they’re much less likely to get sued. I think the same is more than likely true for lawyers. It was in our case, we did not get sued. We were able to work with our client to a resolution that was good for everybody and everybody was happy and we continued the relationship, but I think that requires honesty and transparency and following the professional rules of responsibility.

Rocky Dhir:

What about the grievance process and the disciplinary process? Because what we’ve talked about so far is it’s the ramification of getting sued for malpractice, but what about somebody actually taking action against your license as a client for something you did wrong at that point in your experience, is there a different treatment by the disciplinary authorities once you’ve, depending on whether you came clean upfront or whether you tried in earnest to follow the rules? I mean, is there a difference in the way those two cases are treated at the grievance level?

Scott Skelton:

Well, I’ve been fortunate not to have to deal with the grievance committee, but I do read the reports in the state bar journal and I do have some experience with lawyers outside my firm who have been through that process, and I don’t think if you read the grievance process, lawyers are really punished for making mistakes. I think they’re punished for not communicating, making their mistakes or not communicating with clients or dishonesty, but rarely, if you make a mistake and you’re honest with it, is the grievance process going to punish you in my opinion. Now, you can ask somebody who’s sat on that for a long time, but I bet they tell you the same thing in 33 years. I’ve really never seen lawyers who make a mistake. They’re honest, transparent, follow the rules. I don’t see them being punished.

Rocky Dhir:

What about actually looking at your malpractice coverage itself because this, you did have some experience with at least when you have to come clean with your clients on that appellate issue. If you’ve put it in writing and you’ve put out a letter and it’s all there, do you have any experience or do you have any insights on what that does to your malpractice coverage? Does your insurance carrier get upset that you came clean and admitted everything or would they rather you take the other approach? Go down lane number two as it were?

Scott Skelton:

Yeah, so I don’t think that your insurance carrier can trump your responsibilities under the professional rules of responsibility. I think you’ve got to do what’s right and then your carrier can do what they’re going to do. We’ve been fortunate to have the same insurance carrier for a long, long time. We’ve had a really good relationship with our carrier, and I can tell you from experience that it made no difference in our premium. None. Maybe we’re lucky. I’ve been practicing 33 years and two firms, basically the Zelensky Law firm and now Skeleton Slusher, which is just a continuation of the old firm with the latest members. And in 33 years, I know of three claims within our firm and never was the carrier a problem.

Rocky Dhir:

One thing I do want to talk about is how you closed out your session at the State Bar of Texas annual meeting. You talked about dealing with opposing counsel and kind of working together. But before we get to that, we’re going to take another break. We’re going to hear from another one of our sponsors, and when we come back, I’m fascinated to delve into this aspect of your talk. So when we come back, we’re going to talk to Scott Skelton about working with opposing counsel and some of the unexpected consequences and rewards that that can bring to you. So stay tuned, we’ll be right back. We are back with Scott Skelton. Now, if you’ve gotten anything out of this, it’s that we’ve got to be honest and forthright and admit when we have mistakes that can be hard to do because we all want to be perfectionists, but sometimes it happens.

And Scott, you’ve talked to us at great length and in great depth about being honest and forthright and doing the right thing upfront. You also talked at the state bar of Texas annual meeting about being professional and in some cases helping opposing counsel to avoid malpractice where possible. So can you comment on how that advice intertwines with our duty to zealously defend our clients? I mean, if I can win on a technicality or procedural issue on the other side, missed a deadline, and I can take full advantage of that, why shouldn’t, I mean, I’ve got a duty to the client just as much as I’ve got a duty to the state bar. So could you comment on that if you don’t mind?

Scott Skelton:

I do understand representing my clients zealously, and I understand that you’re supposed to be a zealot advocate, and I believe that I’ve always done that, but I also believe that a mistake that another lawyer makes is not always a winner for you and is not always a situation that should be taken advantage of. I’ve been fortunate enough to practice with a lot of the same people on the other side of cases for a long time, and I practiced with a young man who was, we were both young then and unfortunately he’s passed, but I can remember one time when I called him up and I said to him, I’ve missed the deadline to amend my pleadings and I don’t have contributory negligence pled in a car wreck case. And his response was, just go ahead and plead it and don’t worry about it. I’m not going to challenge it.

Ultimately, that case settled, but I never forgot what he did because I could have filed a motion to amend and gone through the process of having a hearing and fell on my sword in front of the judge and I probably would’ve won my motion, but he didn’t require me to do any of that. He just did what he knew was the right thing. The same lawyer called me up in another case maybe a year or more later, and he said, Scott, you sent me requests for admissions and I just need you to withdraw them. He said, just withdraw them. I can’t tell you why. And I said, you know what? That’ll be fine. I jotted off a letter and said, my request for admissions are hereby withdrawn. You do not have to answer ’em. A month later, he withdrew from representation. What he didn’t tell me is he had a problem with his client and he just didn’t want request for admissions hanging out there when he withdrew.

Rocky Dhir:

We get deemed admitted on the client,

Scott Skelton:

And while we’re on deemed admissions, I just think those are silly. I did requests for admission answers this week just to get ’em off my desk so they would be answered timely. But I just think deemed admissions are one of those things. If a lawyer misses that you ought to be graceful about, I mean, don’t win your case on deemed admissions, and I doubt any JESU are going to let you anyway, and you just cause a huge amount of stress to people who are already in a very stressful profession. I think that’s what I want to preach both at the State Bar Convention on your podcast is don’t put people in stressful positions that aren’t necessary. Here’s the other thing, you’re going to need a favor. You’re going to need somebody to show you grace just as much as they need you to show grace sometimes if they’re a jerk, the whole case, maybe you’re not as nice

Or if it really is going to affect the client’s interests. I understand you have to be a zealot advocate, but making somebody file a motion and go through the hoops just because they’ve made a minor mistake is just causing stress to everybody that they don’t need. And I promise you, you’re going to need the same grace because you can’t practice for as long as I have, which at this point is a pretty good time, 33 years and not make a few mistakes along the way, and you’re going to need somebody to say, that’s not important to me. Just go ahead and do what you need to do. File your pleading file, your answers request for admissions. Now, I know that a deadline like missing an appellate deadline, people aren’t going to waive that, and I understand that, but those are not what I’m talking about.

Rocky Dhir:

You sound very passionate about this topic, and for those of you, those of you can’t see him. Scott got very animated when it came to this topic about kind of working with people in a more collaborative fashion. Do you think lawyers have lost sight of that? Is that why you feel so passionate about it?

Scott Skelton:

I do, because I think when I first began to practice, especially in the East Texas area, I ran in the same lawyers over and over and over and over, and when I did that, we built relationships. We also knew we were going to see ’em in the next case. We might have two or three cases on the same docket. And so you really couldn’t afford to be a jerk. And I think unfortunately now people have this feeling that I’m never going to see you again, and even if I do, it’s going to be a while longer and I’m just going to do what I want to, and I don’t care how stressful your life is or how hard I make it on you unnecessarily. I think we have lost some of that. I do see some of it coming back. I saw a post on the Texas Lawyers Facebook page where somebody was talking about using chat GTP to just basically hound another lawyer, and the responses to that were not positive, and those are the kinds I’m thinking about. Nobody wants to get 250 requests for admission, and if you object to ’em, then get 250 more discovery requests. I mean, those kinds of things are silly and they’re not useful and they don’t really further justice.

Rocky Dhir:

How do you think we fix it?

Scott Skelton:

Well, I think it just starts with each of us. I think we’ve got to say, this sounds trite, but it really is the golden rule. You’re going to have to treat others the way you want to be treated. My secretary and legal assistant can grant an extension to answer discovery at least the first time without even asking me, I’m going to give you two more weeks, maybe even a month. I’m just not going to put you under the pressure unnecessarily because I’ve got plenty of work on my desk, and if your discovery comes to me two weeks later, I don’t really care. I mean, just want you to answer it and be honest with me. Now, it kind of irritates people when you give them, when I give a two week extension, then all I get is objections.

Rocky Dhir:

Objections. You’re right.

Scott Skelton:

But that doesn’t happen very often, and I’m passionate about it. If you want to get to the real passionate about it is because I’ve lived a life where it’s benefited me. As you know, I talk about the fact that at one time I had over 4,000 asbestos cases essentially all against the same lawyer. They were filed all over northeast Texas, and I traveled literally from Mexico, United States, Canada, defending those cases.

Rocky Dhir:

Are we about to talk about the kidney story?

Scott Skelton:

If you want to. I mean,

Rocky Dhir:

Yes, sure, we need to hear the kidney story. So yes, tell

Scott Skelton:

Us. So I had these 4,000 cases and I had a client that was smart. I had a client that was super smart and they were like, we’ve got 4,000 cases and we have cases all over the United States against other plaintiff firms. The advice when they gave me the book of business is don’t piss ’em off unnecessarily. Work with them, take ’em to dinner, be collegial, be professional, make friends with them. And I will tell you, we never settled an asbestos case. We never paid any money. Now, we would work the case up, we would write a summary judgment and I would send it to the other side before I filed it and said, Hey, I’m going to file this. You want to non-suit me before I do? It was a really good experience. I had a smart client. I had a sophisticated client who said, Hey, go make friends with these people.

So as you know, the story goes something like this. In 2008, I’m diagnosed with IGA and nephropathy, which is bilateral. It’s in both kidneys and basically is a protein that eats your kidneys up. And so I’ve got to have a transplant. This is November of 2008, and I’m healthy enough that I’m continuing working and I’m going to CLE, which is what I did. I went to A CLE in Houston, and I ran into another young logger from this firm that I had all these cases against, and she said, how’s it going? I said, well, I’m okay. I got a little medical problem. I’m going to have to have a kidney transplant. And she was like, oh, that’s terrible. I’m so sorry. And she went back and told the logger that I worked against, whose name is Keith Langston and Keith still in Longview, and he and I talk every week, and Keith calls me up on the phone and I’m sitting in an office about 20 or 30 feet from where I am right now, and I pick up the phone and Keith says, I hear you need a kidney. And I said, yeah, I need a kidney. And he goes, I’ll give you one. That’s exactly how it happened. And the even gets a little bit better, and it almost sounds like it’s made for tv, but it happened. I transplanted in Dallas at Baylor Hospital, and my transplant team was the Dallas Transplant Institute. Well, they emailed me the donor application while we were on the phone.

Rocky Dhir:

Wow.

Scott Skelton:

I said, well, Keith, the donor application just came in. He said, well, send it to me. So I hit forward, send it to him. I literally hear it ding on the other side, and he talks a few more minutes and we hang up and I think, well, that makes me feel good, but we’ll see what happens. What about 45 minutes? He sent me an email. He said, I turned it in. This is all November, 2008. We transplanted on February the 12th, 2009 at Baylor Hospital, and we would’ve transplanted on the seventh. They usually did the live donor transplants on a Thursday. But Keith had a big important appellate deadline in a federal appeals court in Denver, and he was like, can you make it one more week? And I was like, man, I’ll make it one more week. I think I could do it.

Rocky Dhir:

You granted him an extension. I gave

Scott Skelton:

Him an extension. Well, he was going to extend my life. I felt like it was worth it.

Rocky Dhir:

Quid pro quo. Absolutely.

Scott Skelton:

The other part of that story that’s kind of interesting is I called my client, I think I probably ought to call my client and tell ’em that the plaintiff’s attorney in this 4,000 cases is going to give me a kidney. But I called him up and I said, Hey, I’ve got kidney disease and I’m going to have to have a transplant. And they were like, oh, well, that’s terrible. And I said, well, I have a donor. And they were like, oh, that’s wonderful. I said, it’s the plaintiff’s attorney in all these cases. And they said, Hmm, go for it. We don’t care. And so that’s the way it went down. Still never settled a case with keys. So lifelong friendship. His wife actually grew up here in Lufkin, so we had some connections that way, but just the generosity of heart to do something for another lawyer that he didn’t have to do.

But I think it’s because we became friends even though we were opponents, and we treated each other with a great deal of respect, and we were very professional with each other and to this day, still rewarding to have his friendship. We’ve been on cases together now. We’ve worked on cases together as co-counsel, so it’s been a lot of fun, and I remain healthy 15 years later. So it was a good deal. Professionalism pays off. I’m convinced of it’s going to lead to a happier life, a longer life, and you may just get a kidney that you need.

Rocky Dhir:

I can’t think of any better way to close than just that. So I’m going to leave that the way it is. No more questions, your Honor. This is fantastic. So Scott, thank you so much for joining us and for sharing your stories.

Scott Skelton:

Well, I appreciate the honor of getting to be here.

Rocky Dhir:

Absolutely. And of course, I want to thank you for tuning in and for listening, and I want to encourage you to stay safe and be well. If you like what you heard today, please rate and review us wherever you get your podcast. And until next time, remember, life’s a journey, folks. I’m Rocky Deer signing off.