“What a boring subject! I can’t believe anyone would write an essay on this topic – no less read it. C’mon, let’s find something better to do.”
Wait a minute; wait a minute. Just give me a chance. Read a bit further. Trust me.
Death and taxes: the two certainties in life. Well, it’s time to add a third: mistakes. Errors are part of the human condition. They are unavoidable. Even God is not immune. Just look around.
I worked for a lawyer who once told me: “Peter, you can’t help making mistakes. Just pray that they’re small.” He was half-right: prayer is not the answer. Checking your work – quality control! is: not once; not twice; but several times. Even then there will be mistakes, but by then they should be small.
An article by David Margolick, which appeared in the October 4, 1991 edition of The New York Times, provides a perfect study.
In the 1980s an insurance company and a finance company lent substantial sums of money to a shipping company. The loans were secured by mortgages on the borrower’s fleet – the insurance company having first priority. Later, when the financing was restructured and the new mortgage for the insurance company prepared, three digits were omitted from a crucial figure. Instead of stating that the mortgage secured a debt of $XXXXXXXX, the mortgage stated that it secured a debt of $XXXXX – not an insubstantial difference. According to the article, the error was repeated on numerous documents; but the error was never discovered until after the mortgage had been recorded and the shipping company had gone into bankruptcy. The error had not been detected by the insurance company’s in-house counsel, nor had it been detected by the insurance company’s out-house counsel. It was not detected by the lawyers for the shipping company, and it was not detected by the lawyers for the other lender, the finance company. The article reports that the insurance company “reckoned that the typo cost it at least $31 million.”
“Didn’t they proofread?!” you exclaim. Of course they proofread. Each draft was proofread. What happened is a lawyer’s nightmare. And what happened probably occurred because of the one or two most common mistakes in proofreading – the most boring of endeavors: (1) lack of concentration, (2) the eyes tend to see and the ears tend to hear what they expect rather than what is.
But the point of this essay is not to explore the techniques of proofreading. The point of this essay is the impression The New York Times article gives of who was to blame: the secretary who typed the mortgage. The article closes with a statement by one of the members of the firm at which she worked: “…the firm knew the name of the erring secretary. He described her as contrite. He also said her current whereabouts were unknown.”
To blame a secretary for this mistake is to blame the manufacturer of the knife used by Jack the Ripper. For the lawyer to hide behind a secretary’s typographical error is not only absurd but despicable. A secretary types thousands upon thousands of characters a day nay, an hour. Mistakes must inevitably occur. At the secretary’s stage of production, there is no difference between dropping the last three digits of a number and dropping a three-letter word (“the”) from a sentence. No one knows where or how serious the errors will be, but “as sure as God made little green apples,” the errors will be there. And the only person responsible for the quality of the document is the lawyer!, not the secretary.
I tell the lawyers in our firm: the secretary’s responsibility for accuracy in the final document begins and ends with the address on the letter and the envelope. The attorney is responsible for everything else. If a secretary makes too many mistakes, get a new secretary; but when that final version leaves the office, there is no such thing as a “typo.” There are proofreading errors and “lawyeros,” but not typos. And it does not matter that paralegals or others do the proofreading. The lawyer is accountable. And the lawyer who does not adhere to this principle will ultimately bat $000.
*Section 1.3, Commercial Agreements – A Lawyer’s Guide to Drafting and Negotiating, by Peter Siviglia (Rochester: Lawyers Cooperative Publishing, 1993) pages 7-9.