Own the Error: The Credibility Play Litigators Should Make

Two weeks ago, I wrote about how generative AI can bludgeon your credibility if you let it. But let's be honest: AI is the new kid on the block. The older, more familiar credibility risk is simpler and far more common — being wrong. Maybe there’s an attorney somewhere who has never misread a document or miscited a case. It certainly isn’t me. Lawyers are human and make mistakes.

Attorneys usually don’t lose credibility solely because of an error. Rather, it’s lost (or enhanced) by how they respond. That’s my experience anyway.

Several years ago, I represented a plaintiff in contentious litigation against multiple defendants. Unlike me, defense counsel regularly appeared before the judge. Amidst a flurry of motions, I cited a decision as persuasive authority in a motion response. It was a good cite. It was also — as counsel opposite pointed out in their reply — directly contradicted by binding authority I missed. Not a hallucination. Not a machine's fault. Mine.

Here's what I did: I wrote a formal apology to the court and copied counsel opposite. No hedging, no "the authority could be read to suggest," no blaming a junior attorney or staff. I acknowledged the oversight, acknowledged the controlling precedent, and explained how my argument stood in its light.

I can't prove causation, and I won't pretend to. But here's what I observed: that admission carried through the rest of the litigation. I never got the impression that the court read my submissions with a raised eyebrow. And when the judge ruled on the relevant motion, my client prevailed.

The lesson isn't that apologizing wins motions. It doesn’t, nor should it. The lesson is that credibility is a currency you spend down any time you defend the indefensible and replenish when you own up to a mistake. This is not to suggest that any minor misstatement requires an exercise in self-flagellation. As with most things, a mea culpa should be proportionate and transparent.

The point is: a court or tribunal that has watched you correct yourself gracefully is far more inclined to trust the next thing you say.